This summary of age discrimination law in Tanzania has been prepared by ATZ Law Chambers: www.africalegalnetwork.com/tanzania. This summary is intended to give a brief general overview of age discrimination in Tanzania and should not be relied upon as legal advice.
In Tanzania, protection against discrimination is provided for in the Constitution of the United Republic of Tanzania, 1977 Cap 2 R.E. 2002 (Constitution), which is the supreme law of the country. Article 13 of the Constitution defines “discrimination” to mean to treat individuals differently on the basis of their nationality, tribe, place of origin, political opinion, colour, religion or station in life (i.e. marital status, whether one has children, age).
The Employment and Labour Relations Act, No. 6 of 2004 (ELRA) promotes equality and prohibits discrimination at the workplace. Section 7(4) of the ELRA prohibits any employer from discriminating directly or indirectly against an employee in any employment policy or practice on any of the following grounds: age; nationality, tribe or place of origin, race, national extraction, social origin, political opinion or religion, sex, gender, pregnancy, marital status or family responsibility, disability, HIV/aids, colour or station of life. Harassment of an employee is recognised as a form of discrimination.
Employment policy and practice as referred to above is defined in Section 7 (9)(c) of the ELRA to include any policy and practice relating to: recruitment procedures, advertising and selection criteria, appointments and appointments process, job classification and grading, remuneration, employment benefits and terms and conditions of employment, job assignments, the working environment and facilities, training and development, performance evaluation systems, promotion transfer, demotion, termination of employment, and disciplinary measures.
The ELRA applies to all employees including those in public service of the Government of Tanzania in Tanzania Mainland save for members in the service of the Tanzania Peoples Defence Forces, the Police Force, Prisons Service or National Service.
However, the ELRA specifically provides that the provision of section 7 (which deal with discrimination) is one of the provisions that apply to forces listed above as non-discrimination applies to all employees.
What claims are most common and what are the trickiest issues for employers?
In Tanzania, most claims concern unfair termination by an employer. We are not aware of many instances where claims have been brought for discrimination based on age/retirement age or unfair termination due to age discrimination.
Are there any specific exceptions in your laws
Section 7(6) of the ELRA provides for a few exceptions:
affirmative measures taken to promote equality or eliminate discrimination in the work place; or
to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job; or
to employ a citizen in accordance with the National Employment Promotion Services Act 1999. This legislation is currently under review and may be repealed.
The burden of proof in any proceedings where an employee makes a prima facie case of discrimination by the employer rests with the employer to prove that the discrimination did not take place or the discriminatory act does not fall under any of the listed grounds. The employer has to prove a defence in terms of the exceptions (as discussed above).
Pursuant to the Public Service Social Security Fund Act Cap. 298 (PSSSF) the compulsory age of retirement is 60 years, and 55 years is the voluntary age of retirement. Under the Public Service Retirement Benefits Act, 1999, the age for voluntary retirement from Service is fifty-five (55) years.
Any public officer who attains the age of 55 years may at any time thereafter opt to retire but an officer who does not so opt to retire shall continue in office on pensionable terms until he is 60.
The retirement provisions do not apply to an officer who has been appointed to hold the office of Judge of the High Court, or Justice of Court of Appeal or Controller and Auditor General. The age for voluntary or compulsory retirement for Judge of High Court, Justice of Appeal or the Controller and Auditor General shall be as is provided for under Constitution.
In Tanzania there is also sectoral exceptional retirement age for example, the Companies Act of Tanzania provides that no person shall be capable of being appointed a director of a company which is subject to this section if at the time of his appointment he had not attained the age of 21 years or he has attained the age of 70 years.
The mandatory retirement age in the private sector is the same as that in the public sector.
What enforcement/remedies exist?
The enforcement/remedies would depend on the type of claim that has been brought to the Commission for Mediation and Arbitration (CMA).
An employee can bring proceedings in the CMA against an employer for contravention of the provisions of the ELA, which as highlighted above prohibit discrimination. Pursuant to section 102(3) of the ELA any person who discriminates in anyway described in the ELRA commits an offence and upon conviction such person would be liable to a fine not exceeding five million Tanzanian Shillings (T.Shs 5,000,000).
In the event that the employee successfully claims age discrimination has resulted in unfair termination then the CMA may order the employer to (i) reinstate the employee from the date the employee was terminated without loss of remuneration during the period that the employee was absent from work due to the unfair termination; or (ii) re-engage the employee on any terms that the arbitrator or court may decide; or (iii) pay compensation to the employee of not less than 12 months’ remuneration.