This summary of age discrimination law in Nigeria has been prepared by Templars: www.templars-law.com
There is no specific legislation governing age discrimination in Nigeria, however, the Constitution of the Federal Republic of Nigeria 2011 (as amended) (the “Constitution”) has fundamental provisions which generally guarantees all citizens of Nigeria freedom from discrimination.
Section 42 of the Constitution specifically provides for the right to freedom from discrimination. The section provides that a citizen of Nigeria shall not be subjected to any disabilities or restriction, expressly or in application of any law or any executive or administrative action of the government just because he is such a person or be subjected to disabilities or restriction due to their place of origin, sex, religion or political opinions. In the same vein, section 42(1)(b) states that a citizen of Nigeria shall not be accorded any privilege or advantage that is not accorded to citizens of Nigeria that are of other communities, ethnic groups or due to their place of origin, sex, religion or political opinion.
In addition, the Constitution contains guiding principles, some of which deal with discrimination. Section 17 (3) of Chapter II of the Constitution (Fundamental Objectives and Directives Principles of State Policy) provides that the state shall direct its policy towards ensuring the following;
Opportunity for securing adequate means of livelihood;
Just and humane conditions of work;
Health, safety and welfare of all persons in employment;
Equal pay for equal work without discrimination on any ground whatsoever; and
Prohibition of child and aged labour.
Unfortunately, the foregoing provisions of Section 17 of the Constitution are non-justiciable. This is because Section 6 (6) of the Constitution stipulates that the judicial powers vested in the court shall not extend to any issue or question as to whether any act or omission by any authority or person or as to whether the law or any judicial decisions is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II. It follows therefore that any action brought to enforce the provisions of Section 16, 17 and 20 of the Constitution will be void.
Thankfully, some of the directive principles, particularly (v), have been taken into consideration in the drafting of existing legislation such as the Labour Act 1971. The Labour Act is the primary legislation governing employment relations in Nigeria. The Act makes specific provisions for the protection of wages of all employees regardless of age, sex, religion or political beliefs. It also provides strict restrictions for recruitment of persons categorised as young persons i.e. persons below sixteen.
Constitutional provisions cover all persons in Nigeria including employees in the public and private sector. However, the Labour Act (the “Act”) which attempts to offer certain protection to workers, does not apply to all employees in Nigeria. It applies to only persons who have entered into or work under a contract with an employer for clerical or manual work. Persons excluded from the scope of the Labour Act as specified under Section 91 include:
Any person employed otherwise than for the purposes of the employer’s business; or
Persons exercising administrative, executive, technical or professional functions as public officers or otherwise; or
Members of the employer’s family.
The implication of this is that persons employed for their technical knowledge or administrative abilities are not covered by the provisions of the Act. Where the Act does not apply, the employment relationship would be governed by the terms and conditions of the contract of employment.
WHAT ENFORCEMENT/REMEDIES EXIST?
Whilst there are hardly any reported cases of discrimination on account of age, it is useful to note that a declaratory action and orders of injunction are the potential remedies that can be sought and obtained against the employer in cases of discrimination. The specific type of declaratory actions and injunction will depend on the facts of each case. The court may not order an employer to rehire a worker because of the personal nature of employment contracts. It is trite that the court cannot force a willing employee on an unwilling employer and vice versa. However, the court may declare that the termination is wrongful and discriminatory and, thus, award damages in favour of the affected employee.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE THE TRICKIEST ISSUES FOR EMPLOYERS?
As stated previously, claims for discrimination on the basis of age are not very common in Nigeria as there is no specific legislation providing protection against age discrimination. Rather, more common discrimination claims in Nigeria are usually based on grounds of sexual harassment, trade unionism or ethnicity. The reason for this may not be farfetched. In Nigeria, employees are either governed by the terms of their contract or by the provisions of statute, and in most instances these contracts or governing statute specify ages of retirement or limitations as to employability of the individuals involved. The fact that termination of employment under Nigerian law can be for a cause or for no reason at all is not helpful and can also be seen as a huge mitigating factor to employees who may be blindsided to the fact that their contract was actually terminated on grounds that may be seen as discriminatory.
ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAW?
Various pockets of exceptions exist under the Labour Act. A child under the age of 14 years may be employed subject to the fulfilment of the following conditions:
On a daily wage;
On a day-to-day basis; and
So long as the child returns each night to the place of residence of the child’s parents or guardian or person approved by the child’s parents or guardian.
They are also prohibited from being employed in circumstances in which it is not reasonably possible to return each day to the place of residence of his parent or guardian, except:
With the approval of an authorised labour officer; and
On a written contract
Young persons under the age of 15 years are restricted from being employer in any vessel, except where;
The vessel is a school or training vessel and the work on which the young person is employed is:
Work of a kind approved by the Minister; and
Supervised by a public officer or by a public department
Only members of the young person’s family are employed.
Employment in the public sector is subject to a mandatory retirement age of 60 years or 35 years of service, whichever is first.
However, there are sector-specific exceptions as to the age of retirement. For instance, the compulsory retiring age of academic staff of a University is 65 years. Alternatively, a Professor may elect to retire at the age of 70 by giving written notice.
There is generally no fixed age for retirement in the private sector. However, some private organisations have prescribed a retirement age for their employees of between 55-65 years.
There are no interesting age discrimination cases in Nigeria.