This summary of age discrimination in Guatemala has been prepared by Aguilar Castillo Love www.aguilarcastillolove.com.
The Constitution of the Republic of Guatemala (‘Constitution’) establishes in Article 4 that all human beings are free and equal in dignity and rights. Men and women, regardless of their civil status, have equal opportunities and responsibilities.
The Labour Code regulates the following:
Article 6: A person may be limited on his right to work, only by means of a lawful resolution issued by a competent authority, on grounds of public order or national interest. As a consequence of this, none may limit another to perform any profession or lawful activity a person so chooses.
Article 14: The prohibition to discriminate another on grounds of race, religion, political affiliation and financial situation. This article does not contain any provision on age discrimination.
Article 21: If the service to be rendered is not expressly stated in the individual labor contract, the employee is only obligated to perform the duties that are compatible with his strength, aptitude and physical condition.
Article 31: Minors who are 14 years old or older (adulthood is legally reached at 18 years old), have the legal right to contract their work without the intervention or authorisation of their parents, legal guardians or the State.
Article 32: Contracts relative to the work of minors who are under 14 years of age must be entered into with the express written consent of the parents or legal tutors of said minors and with the authorisation of the General Inspection of Labour.
Article 147: Work performed by minors must be specifically compatible with their age, conditions or physical state and their intellectual and moral development.
Article 148: Prohibits minors:
From performing work within a dangerous or unsanitary environment.
From working during night shifts or overtime.
From working in bars or any other establishment where alcoholic beverages are sold.
From working if they are under 14 years of age.
Article 149: Reduces the work day shift for minors.
Article 102 of the Constitution includes the following:
Minors under the age of 14 cannot be legally employed, unless otherwise permitted by a specific law.
·It is prohibited to employ minors to perform duties incompatible with their physical capabilities or that endanger their moral development.
Workers over the age of 60 will be treated in accordance to their age.
Other important laws in Guatemala include:
Law of Integral Protection of Children and Youths (Ley de Protección Integral de la Niñez y Adolescencia) Decree Number 27-2003.
Law of Protection of Old Aged People (Ley de Protección para las Personas de Tercera Edad) Decree Number 80-96.
Labour Protection of Working Children and Youths (Protección Laboral de la Niñez y Adolescencia Trabajadora) Government Accord 112-2006.
There are no specific laws that regulate age discrimination issues in the workplace. Instead, these are governed by general rules established by the Constitution and the Labour Code.
WHAT ENFORCEMENT/REMEDIES EXIST?
In the event of a dismissal due solely to age discrimination, the case would fall within the parameters of an unjustified dismissal subject to the general rules of any labour judicial process. There is no specific procedure for an age discrimination claim, but an employee would be entitled to take his/her employer to court where said employer would have to prove beyond a shadow of a doubt that the dismissal was justified. If said employer cannot prove this, the employee would be entitled to severance pay and damages for the dismissal.
HOW COMMON ARE CLAIMS
From a labour law standpoint, age discrimination claims are not as common. However it is common for employees to argue that there was no valid justification for their dismissal. Employees need only argue that there is no just cause and it falls on the employer to prove said just cause within the provisions detailed in Article 77 of the Labour Code. An employer who cannot prove a justified dismissal and cannot reach a settlement with the employee will be ordered to pay severance and damages to the employee.
From a criminal law standpoint, there are more cases associated with discrimination in general, since a reform to the Criminal Code in 2002 included discrimination (on the basis of age amongst others) a crime.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE THE TRICKIEST ISSUES FOR EMPLOYERS?
The trickiest issue for an employer is proving that there was a just cause to dismiss an employee and that the dismissal was not only on age considerations. While there is no express prohibition to dismiss an employee only on age considerations, employers must take caution. Article 77 of the Labour Code establishes the specific causes that give an employer the right to dismiss an employee without having to pay severance and/or damages.
ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAWS
Article 150 of the Labor Code establishes the qualified exceptions where the General Inspection of Labor may authorise the work of minors under 14 years of age.
There is no statutory retirement age and the law does not allow employers to automatically terminate the employment relationship.
The retirement age which allows workers to receive pension from the Social Security (Instituto Guatemalteco de Seguridad Social – IGSS) is 60 years old.