The age discrimination in employment act provides protection to employees:

This summary of age discrimination law in Singapore has been prepared by Rajah & Tann, the Ius Laboris affiliate for Singapore: www.rajahtannasia.com

Overview

Under Singapore law, the Retirement and Re-employment Act (Chapter 274A) of Singapore (the "Act") and its related subsidiary legislation provide employees protection against age discrimination.

The rules generally relate to:

• Statutory protection of employees against dismissal based on age. The Act prohibits employers from dismissing employees before they attain the “specified age” for a reason that is solely on the ground of their age. The “specified age" is the prescribed minimum retirement age (currently 62) or the retirement age stated in the contract, whichever is higher;
• Re-employment of employees upon attainment of the specified age;
• Grant of an employment assistance payment by the employer if an employee cannot be re-employed upon attainment of the specified age (unless the employee informs the employer that he/she does not wish to continue employment);
• Remedies for unlawful dismissal on the ground of age;
• Remedies relating to unreasonable denial of re-employment and dismissal without just cause or excuse; and
• Remedies relating to unreasonable terms and conditions of re-employment and employment assistance payment.

Recommendations on fair employment practices and re-employment of older employees are also contained in the Tripartite Guidelines on the Re-employment of Older Employees (the "Tripartite Guidelines"), although these guidelines do not have the force of law and are not binding on employers. The Tripartite Guidelines are however, considered to be employment best practices, and employers are highly encouraged to follow the same. This write-up deals mainly with the Act and not the Tripartite Guidelines.

Who's covered?

The Act covers all employees that are Singapore citizens or permanent residents except for certain categories of employees exempted under the Retirement and Re-employment (Exemption) Notification 2011 ("Exemption Notification").

General position

Under section 2 of the Act, an "employee" is defined as "a person who has entered into or works under a contract of service with an employer". An "employer" in turn, includes but is not limited to the Government, any statutory authority, any duly authorised manager or agent of any employer, and any person who owns or is carrying on, or for the time being is responsible for the management or control of a profession, business, trade or work in which any employee is engaged. Hence, the Act covers a wide scope of employees.

Exemptions

The Exemption Notification provides some exemptions for employers to the minimum retirement age and wage requirements, as well as the re-employment requirements. Examples of exempted employees include:

• a person who is required under his contract of service made before they attained the minimum retirement age to work for a fixed term on a specific project;
• a person who is required under his contract of service made before they attained the minimum retirement age to work for not more than 20 hours per week;
• a civil servant who is eligible to retirement benefits or pension under the Pensions Act (Chapter 225) of Singapore;
• certain categories of civil servants;
• a person below 55 years of age who has less than 2 years of service with his employer; and
• a person who is aged over 55 when recruited by an employer.

What enforcement/remedies exist?

Dismissal before minimum retirement age

If an employee is unlawfully dismissed below the specified age, he can make representations in writing to the Minister of Manpower ("Minister") within 1 month from the dismissal and ask that he be reinstated to his former employment.

Possible remedies are: (i) reinstatement to the employee's former employment and payment of an amount equivalent to the salary that the employee would have earned had he not been unlawfully dismissed by the employer; or (ii) a just and equitable compensation.

Re-employment – Unreasonable denial of re-employment or dismissal without just cause or excuse

If an employer unreasonably denies an employee re-employment, or dismisses without just cause or excuse, an employee wishing to bring a claim about this must first notify the Commissioner for Labour ("Commissioner") of the dispute no later than 1 month after the last day of his employment. The aim is to assist the employee and employer to reach an agreement through conciliation.

If the conciliation fails, the employee has to make a representation to the Minister no later than 1 month after conclusion of the conciliation. Possible remedies that may be granted include re-employment or compensation.

The Minister's decision is final, and the employee is barred from making further claims for damages based on the same action. Representations made to the Minister also operate as a bar to the making of any representations under the Employment Act (Chapter 91) of Singapore and the Industrial Relations Act (Chapter 136) of Singapore). An employer who fails to comply with the Minister's directions will be liable to a fine of $10,000 and/or 12 months' imprisonment.

Re-employment – Unreasonable terms and conditions of re-employment contracts and employment assistance payments

In the event there is a dispute in relation to unreasonable terms of a re-employment contract and an employment assistance payment, an employee has to first notify the Commissioner in writing of the re-employment dispute no later than 6 months after the last day of his employment. The aim is to assist the employee and employer to reach an agreement through conciliation.

After the conciliation is conducted, the employee can lodge a claim with the Commissioner, for the payment or as to the quantum of employment assistance payment, no later than 1 month after conclusion of the conciliation. Possible remedies that may be granted include re-employment or compensation.

Similarly, representations made to the Minister also operate as a bar to the making of any representations under the Employment Act (Chapter 91) of Singapore and the Industrial Relations Act (Chapter 136) of Singapore).

Appeals

The Minister's directions are final and there is no right of appeal from this.

Appeals to a Commissioner’s decision can be made to the High Court within 14 days after the Commissioner's judgment or order. An appeal can only be brought if there is a substantial question of law involved.

How common are claims?

Although age discrimination laws have existed since 1993 (the predecessor of the Act was first enacted in 1993 as the Retirement Age Act, the "RAA"), there has been only one reported judgment in the Singapore courts – the 2000 Singapore High Court case of Noor Mohamed bin Mumtaz Shah v Apollo Enterprises Ltd (trading as Apollo Hotel Singapore) ("Apollo Enterprises"). Further details about this case are provided below.

There are a number of possible reasons why age discrimination claims are so rare, including:

• employers dismissing employees on grounds other than their age (e.g. termination by notice, for which the employer would not have to provide any reason for the termination unless the terms of the employment contract expressly specifies so); and
• the majority of cases are settled at the conciliation stage when the Commissioner has been notified.

What are the trickiest issues for employers?

Tricky issues for employers include the following:

Termination of employees close to (but who have not yet reached) the minimum retirement age of 62

While employers may have the right to terminate employees pursuant to the terms of their contracts, they should not do so on the ground of age (i.e. there should be other reasons for the termination). However, if an employee close to the minimum retirement age is terminated, there potentially might be a suspicion that such employee might have been terminated for reasons of age. If such termination is challenged by the employee, the onus will then fall on the employer to prove that the termination was not for reasons of age. 

Re-employment of employees who have reached the retirement age

Under the Act, an employer must offer re-employment to an employee before that employee reaches the specified age. An employer will need to spend some time investigating suitable re-employment opportunities within their organisation and identify suitable jobs for eligible employees, which may potentially be rather time and resource consuming.

An employer will not be required to re-employ an employee if:

1. the employee does not satisfy the eligibility criteria (as defined below), provided that in such event the employer gives reasonable written notice to the employee of the termination;
2. the employee is eligible but informs the employer that they do not want to be re-employed; or
3. the employee is eligible but the employer is unable to find a suitable vacancy despite making reasonable attempts to do so, and in such event the employer has to offer an employment assistance payment to the employee.

Eligibility for re-employment is determined by: (a) an assessment by the employer that the employee has at least satisfactory work performance; and (b) that the employee is medically fit to continue working.

In the event the employer is unable to re-employ an eligible employee because it does not have a suitable vacancy, an employment assistance payment has to be made (unless the employee does not wish to continue employment). If however, the employee does not satisfy the eligibility criteria, the employer shall, in so far as it is reasonably practicable, give reasonable notice in writing to the employee of the termination.

Difficulty in finalising terms and conditions of the new employment contract

When an employee is re-employed, an employer may offer such employee re-employment on different terms and conditions than the employee enjoyed previously.

As the variation can be based on factors such as the employee's productivity, performance, duties and responsibilities, it may be difficult for the parties to agree on the exact terms and conditions, such as the job scope and the employment package.

Are there any specific exceptions in your law?

The exceptions are contained within the Exemption Notification, which exempts certain categories of employees from the scope of the Act (as stated above).

However, for all employees covered, the provisions in the Act would apply even if any term in their employment contract or collective agreement (a) excludes or limits the operation of any provision under this Act, or (b) precludes any person from making a representation, claim or application under this Act. Simply put, employers are not allowed to contract out of their statutory obligations under the Act.

Retirement ages

Under section 4(2) of the Act, the statutory minimum retirement age is 62 years. Hence, any employer who dismisses an employee solely on the ground of his/her age before the employee reaches 62 years of age would be guilty of an offence. However, if the employment contract stipulates a higher retirement age, this higher age will apply (subject to a maximum of 67 years).

Interesting cases

In Apollo Enterprises (referenced above) the claimant employee claimed that the RAA (the predecessor of the Act) operated to remove an employer's right to terminate with notice. However, the Singapore High Court rejected this argument and reiterated that the purpose of the RAA is not to compel employers to keep poor performers or ill-disciplined employees. Therefore, legislation will not prohibit an employer from dismissing an employee before retirement age if there are grounds other than age which warrant such termination of employment.

Please note, this article provides only generic information on age discrimination in Singapore and is not intended to be relied on as legal advice. For advice on a particular situation, please contact Rajah & Tann Singapore LLP.

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