Age Discrimination in the Nigerian Workplace

For most people who engage in formal education all the way from primary to tertiary institutions, the end game is to graduate, get a good job, add value to their organizations from what they have learnt and retire when the time is right. However, the reality of things is that only a handful of people get to actualize this dream.

The unemployment rate in Nigeria is high, increasing at an alarming rate and there seems not to be any solution in sight. There are many factors that affect the unemployment of many qualified and capable individuals, one of which is age discrimination.

Employment discrimination is defined in economic terms by the International Labour Organisation (ILO) as a violation of a human right that entails a waste of human talents, with detrimental effects on productivity and economic growth, and generates socioeconomic inequalities that undermine social cohesion and solidarity and act as a brake on the reduction of poverty.

The constitution of the Federal Republic of Nigeria (CFRN) particularly in s. 42(2) provides that “no citizen of Nigeria shall be subjected to any disability or deprivation merely by the reason of the circumstance of his birth”. A person’s age is a circumstance of a person’s birth; thus, it is covered by this provision. However, this is the only legal provision that prohibits age discrimination in Nigeria. Potential job seekers and even employees are at a constant risk of being treated unfairly because of their age. This has led numerous people into making false declarations on oath to alter their date of birth so as to fit into the requirements of a job.

Many developed countries have laws and regulations that prohibit age discrimination and other sort of discrimination in the work place. This is premised on the fact that every human is equal and as such, nobody should be subjected to a different type of treatment just because of circumstances in their life.

Age Discrimination in Employment in Nigeria

Age discrimination in employment occurs when a person is denied a job due to his age, or is denied access to learning or training based on age, or is forced to take early retirement based on age.

The Labour Act, being the principal legislation governing matters bordering on employment does not have a provision prohibiting age discrimination amongst other types of discrimination. It suffices to say that the Act is in dire need of a reform and requires necessary amendments.

The only provision against age discrimination is contained in s. 42(2) of the CFRN. This means that if a person has been treated unfavourably in the workplace or during a recruitment process because of his age, the only provision that can provide a ground for an action is contained in the constitution under chapter IV (the fundamental human rights chapter). The effect of this is that despite the fact that the claim arose from matters of employment, the aggrieved party can only seek redress in the High Court on fundamental human right claims as opposed to instituting the action in the National Industrial Court as prescribed by the CFRN in S. 254. Truthfully, nobody wants to file fundamental right infringement suits against organizations because of matters relating to employment but with the way the law is set up in Nigeria, that is the only way to seek redress in regards to age discrimination.

Admittedly, there have been some improvements to certain age stipulations in regards to public service. The Bill (officially known as “Bill for an Act to Eradicate the Age Discrimination against Job seekers in Federal Government Agencies; and for Related Matters (HB. 1502)“) was sponsored by Sergius Ogun and Babajimi Bensonand was approved by the House of Representatives in Nigeria which prohibited the Federal Government Ministries, Agencies and Departments from discriminating against job seekers on the basis of their age. Mr Edward Pwajok, the Chairman of the House Committee on rules and business stated that the bill “seeks to eradicate age discrimination against those who are seeking employment in Federal Government agencies, to lift age barrier standing against qualified youths from being gainfully employed in Federal Government agencies on the basis of their age.”

Prior to this bill, a job seeker above the age of 30 could not be gainfully employed as a Federal Government Personnel. In the same vein, individuals that are above the age of 30 are not qualified to serve the nation under the National Youth Service Corps scheme. This is discriminatory against those who would want the opportunity to serve their motherland. Also, many NYSC members get retained in their primary place of assignment. This means that those individuals that were not allowed to serve because of their age have also technically been robbed of their opportunity to be retained and have a permanent place of employment.

This bad example being set by the government and the total lack of protection for job seekers and employees have made the private sector even more notorious at age discrimination. Job vacancies advertised by banks and other prominent corporate organizations and even law firms always contain one requirement; “The applicant must be between 22 – 28 years or the applicant must not be older than 26 as at the year the vacancy was published”.

This is a gross violation of the freedom from discrimination enjoyed by citizens and the fact that there is no legislation or provision in the Labour Act that bans this act is frankly worrisome. 

When age requirements like that are stipulated, many people will be unfairly treated and will be at a gross disadvantage. The socio-economic state of Nigeria has a huge role to play in how and when a person graduates from a tertiary institution and integrates himself into the labour market. For instance, on a general note, most people gain admission into tertiary institutions at the age of 20.

Speaking from the perspective of legal training in a government institution that is susceptible to strikes and industrial action, an individual might get called to the Nigerian Bar 7 years after the inception of their legal studies. By the time all is said and done, the individual graduates with a good grade at the age of 27 but is automatically at a disadvantage because of his age. That makes the whole essence of education worthless if people face certain detriment not because of the level of knowledge they possess, but because of the year they were born.

Some organizations would further specify that the applicants must be below 26 years with 5 years working experience.  Flowing from this analysis, if some graduates cannot be afforded the opportunity to apply for entry level positions based on their age, they have been subjected to some form of detriment and these set of people apply to a larger percentage of graduates considering the socio-economic reality of Nigeria.

It is pertinent to note that many multinational companies that discriminate on the basis of age in Nigeria will never be found with such acts in their branches in the United Kingdom, the United States and other developed countries. This is because there are laws that expressly prohibit said acts, and acting in contravention to those laws will mean they get buried in litigation by multiple employees and job-seekers. Therefore, they take advantage of the lack of regulation thereof to create unrealistic standards to be met during recruitment in Nigeria. In other jurisdictions, academic qualification, skill and competence are the major criteria for securing employment. There is never a stipulation as to what age a person can apply for a job.

According to Okpalobi and Ibekwe, there is a psychological front to this employer behaviour. Employers prefer persons that will be susceptible to manipulation. Nigeria being an age sensitive country, when a manager is far younger than his subordinates, the tendency that there will be friction in the flow of authority, loyalty and work is perceived as inevitable. These employer-learned attitudes have become hardwired in the hiring system in Nigeria. It was and still is supported by the outdated but still-in-use organizational structure of authoritarian-hierarchy.

However, we currently live in a global knowledge economy, where knowledge is becoming free and translating into a right for everyone. This development alone should change the requirements of hiring in Nigeria because age discrimination is simply unrealistic and unfair to individuals that have put in the work. Age discrimination is not exclusive to hiring but also applies when a person is already employed. If a person is being victimized, harassed or is at a substantial disadvantage when it comes to wages, promotion and designation of assignments because of their age, it is discriminatory and should also be prohibited. This also applies to retirement from the public sector.

A very terrible effect of age discrimination is that many people have been pushed to perjure themselves by making false declaration on oath about their date of birth so as to possess the necessary requirement stipulated for a job or to wiggle themselves away from early retirement as they still feel energetic or perhaps, still need the job.

Furthermore, according to Okom and Aboh, the rate of crime in Nigeria has been identified with the level of unemployment in the country. There is the likelihood that those who are discriminated on the level of age can turn to crime which means that age discrimination practice in Nigeria is a double-edged sword in that it leads frustrated and desperate job seekers towards the false declaration of age which, in the face of Law, is perjury and it leads jobless graduates to take to crime in order to survive.

Presently there is difficulty for individuals above 40 years to secure jobs in Nigeria except at the premium levels, for instance, General Manager, Executive or Managing Director. Most advertised jobs prescribe an age limit as a prerequisite for the jobs; thus, leading to individuals falsifying their age to fall within the age limits required for such job positions.

Age Discrimination in Other Jurisdictions

The Equality Act in force in the United Kingdom replaced all existing equality legislation such as the Race Relations Act, Disability Discrimination Act and Sex Discrimination Act. It is the major legislation that protects individuals and ensures the equality of all persons irrespective of their condition and circumstance.

Chapter 2 of the Equality Act provides for the protected characteristics which include race, gender, age, sexual orientation, gender reassignment, religion and marriage. This ensures that no individual is treated unfairly and unfavourably or is at a disadvantage because of any of the aforementioned protected characteristics.

This protection is also enjoyed in the workplace. In the case of Ms. Anne Giwa-Amu V Department for Work and Pensions, the claimant was awarded the sum of £400, 000 for injury to feelings for the degree of hurt, humiliation and distress that she suffered as a result of discriminatory conduct.

She was employed as a trainee in the respondent organization. She joined the DWP branch in Caerphilly as a full-time administrative officer in 2017, after trying without success to start a small business. She was the only non-white recruit and only trainee over the age of 50 amongst her peers. One of the other employees started to harass her because of her age, and made derogatory remarks at her. She was also racially discriminated against. She filed an action against the respondent for race and age discrimination and the court held in her favour.

Also, in the case of Beck V Canadian Imperial Bank of Commerce, the Claimant brought an action against the respondent because he was selected for redundancy on the basis that the employer wanted someone younger. Aged 42, he was replaced with a 38-year-old. The Employment Tribunal found in his favour.

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In the United States, the Age Discrimination in Employment Act (ADEA) forbids age discrimination against people who are age 40 or older. It does not protect workers under the age of 40, although some states have laws that protect younger workers from age discrimination. Admittedly, there needs to be more protection for people under the age of 40. However, the importance of this legislation cannot be overemphasized. The protections of the ADEA apply to both employees and job applicants. It is also unlawful to discriminate against a person because of his or her age, according to the U.S. Equal Employment Opportunity Commission (EEOC).

Recommendations

The Nigerian Labour Act needs a complete overhaul. There are so many redundant provisions that cannot apply in current times.

There needs to be a full section on anti-discriminatory laws that protect workers and job applicants from direct and indirect discrimination as well as protection from harassment and victimization as a result of those protected characteristics.

Also, a separate Federal Law (Act) that will regulate employment equality both in the public and private sector may be enacted instead of adding these provisions to the Labour Act while amending it.  In South Africa, the principal statutory protection against discrimination in the workplace is established by the Employment Equity Act (EEA). The purpose of this Act is to achieve equity in the work place by promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination.

This provision is extended to all employers, regardless of the type of business or size thereof, and places a positive duty on them to ‘take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice on specified grounds’ of which age is one, amongst other grounds.

A page can be taken out of the playbook of these countries that have created laws to ensure the equality of persons at the workplace. It is hereby recommended that the lawmakers should create a separate law like the UK Equality Act 2010 and the South Africa Employment Equity Act 1998 in line with the realities of Nigeria and ensure that there is no room for anyone to be at a substantial disadvantage because of their age or other protected characteristic.

Conclusion

Nobody should have to attend the university, work their way through, get good grades and be at a disadvantage because every employer wants to hire only individuals that are under 26 for an entry level position.

However, emphasis should be placed on suitability for the said role based on skill and competence rather than the age of the job applicant or employee.

This will inadvertently reduce the crime rate as well as ease the frustration of individuals, boost their mental health and curb the obnoxious habit of people tweaking their ages in affidavits to match up with certain age stipulations.

S. Adeniyi Ajose Esq, is a legal practitioner and an LLM candidate at University of Hertfordshire (Intellectual Property & Data Protection Law). He can be reached at ajosesamson@gmail.com.