Age discrimination, especially in the context of employment, is a pervasive issue across many countries, including South Africa. In the labour law framework of South Africa, age is a prohibited ground of discrimination under the Employment Equity Act (EEA). The rise of aging populations and the increased need for extended working careers have forced employers to rethink their policies concerning older employees. Age-based dismissals, if not handled carefully, could lead to legal ramifications and damage to the company’s reputation. This article explores the complexities surrounding age discrimination in South African labour law, focusing on the responsibilities of employers when dealing with age-related dismissals and what safeguards are in place to protect employees.
The Legal Framework Governing Age Discrimination in South Africa
South Africa’s constitution enshrines the right to equality and non-discrimination, which forms the foundation for the legal framework surrounding age discrimination. Specific legislative protections are found in:
- The Employment Equity Act (EEA): The EEA explicitly prohibits discrimination based on age, alongside other grounds such as race, gender, and disability. Employers are required to ensure that their employment practices do not unfairly disadvantage employees based on their age.
- The Labour Relations Act (LRA): This act protects employees from unfair dismissals. It mandates that dismissals based on discriminatory grounds, including age, are regarded as automatically unfair unless the employer can justify the dismissal with compelling operational requirements.
- The Older Persons Act: Although primarily focused on the protection and welfare of older people in general, this act reflects South Africa’s broader commitment to protecting the rights of the elderly, including in the labour market.
Employers must, therefore, navigate a range of legal instruments that aim to balance operational needs with the protection of older workers’ rights.
Key Legal Concepts Relating to Age Discrimination
1. Unfair Discrimination
Under the EEA, any form of differential treatment based on age that cannot be justified is considered unfair discrimination. This includes recruitment, promotions, benefits, and, most critically, dismissals. Unfair discrimination occurs when an employee is treated less favourably than others in similar circumstances based on age, or when company policies indirectly disadvantage older employees.
For example, a policy that excludes workers above a certain age from training or promotion opportunities could be seen as indirectly discriminatory. Employers must ensure that decisions are based on objective criteria such as experience, competence, and performance rather than age stereotypes or assumptions about the capabilities of older workers.
2. Automatically Unfair Dismissals
The LRA categorises dismissals based on age as “automatically unfair” unless the dismissal can be objectively justified. If an employee is dismissed simply because they have reached a certain age, and no other valid reason for the termination exists, the dismissal is deemed automatically unfair. Employees subjected to such dismissals are entitled to remedies such as reinstatement, compensation (up to 24 months’ salary), or a combination of both.
However, there are exceptions to this rule, particularly where the retirement age has been agreed upon by both parties or is part of company policy. If an employee reaches the agreed retirement age, the dismissal may not be considered automatically unfair, provided the employer adheres to fair procedures. This was demonstrated in the matter of Helgardt Andries Slabbert vs Muji Motor Group, in which the Court found that no applicable ‘normal retirement age’ had been established. And, as the employer had admitted that it had terminated Slabbert’s (the employee) employment because he was 72 years old, the court found that he had been automatically unfairly dismissed due to his age.
3. Retirement Age
While dismissing an employee for reaching a mandatory retirement age is not automatically unfair, complications arise when there is no explicit agreement on a retirement age – as provided for above. In the absence of a contractually agreed or company-stipulated retirement age, employers may struggle to justify dismissing older workers based solely on age.
Moreover, If no retirement age is stipulated, dismissals based on age could be seen as arbitrary and discriminatory. Employers should also consider allowing employees to work beyond the retirement age, especially if the employee is willing and capable of continuing to perform their duties effectively.
Challenges for Employers: Avoiding Age-Based Discrimination
If you are an employer, we advise that you take proactive steps to ensure that you comply with South Africa’s anti-discrimination laws when dealing with older employees. Here are some important considerations:
1. Objective Criteria for Dismissals and Promotions
When making decisions regarding the dismissal or promotion of older employees, employers should base their decisions on objective performance indicators rather than age-based assumptions. Employers may believe that older employees are less productive or adaptable to new technologies, but such assumptions must be backed by objective evidence. Performance appraisals, productivity metrics, and skills assessments should play a key role in decision-making.
2. Health and Safety Considerations
Some employers may have concerns about the health and safety of older workers, particularly in physically demanding jobs. While employers have a duty to ensure a safe working environment, any measures taken should be reasonable and applied consistently. Employers should avoid using health and safety concerns as a pretext for dismissing older employees. Instead, reasonable accommodations, such as adjusted workloads or modified duties, should be considered where necessary.
3. Flexible Retirement Policies
Employers should consider adopting more flexible retirement policies that allow employees to gradually transition into retirement rather than enforcing a rigid age limit. This could include phased retirement, where employees reduce their working hours gradually as they approach retirement age, or allowing employees to work in advisory or mentorship roles beyond the traditional retirement age.
4. Consultation and Communication
Before taking any action related to dismissals based on age or retirement, it is crucial for employers to engage in meaningful consultation with affected employees. Transparent communication ensures that employees are aware of the company’s policies and their own options. Furthermore, consulting with employees can help identify any potential accommodations or adjustments that might allow them to continue working effectively.
5. Review Company Policies
Employers should regularly review their employment policies to ensure they align with current labour laws and do not unintentionally discriminate based on age. This includes reviewing hiring practices, promotion criteria, performance management systems, and retirement policies. Where necessary, policies should be updated to remove any bias or discriminatory provisions.
Employers must remain vigilant in ensuring compliance with anti-discrimination laws and should take proactive measures to create a more inclusive workplace that values the contributions of employees regardless of age. By implementing clear, fair, and flexible policies, and maintaining open communication with older employees, employers can avoid costly legal disputes while fostering a productive, diverse workforce.
Reference list:
- Section 187(2) of the LRA
- The Court in Bester v State Information Technology Agency (SOC) Ltd stated that, when you have an agreed retirement age, like any other contractual term, there must be a “meeting of the minds”.
- (D315/21) [2024] ZALCD 30
While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.