This summary of age discrimination law in Thailand has been prepared by Rajah & Tann: www.rajahtannasia.com

Overview

The constitution of Thailand has always protected against unjust discrimination on the basis of age.[1] Whilst the current interim Constitution, which was enacted as a result of recent political conflict, does not expressly provide for such protection, it nevertheless states that all human dignity, rights, liberties and equalities of the people are protected by the Constitution and shall continue to be protected and upheld.[2]

Barring the anti-discrimination provisions under the Constitution, Thailand has not enacted legislation specifically on age discrimination.  However, certain fundamental discrimination issues, including age and gender, are recognised and addressed in the Labour Protection Act 1998, as amended in 2008 (the “LPA”).  Regarding age, the LPA focuses primarily on children, prohibiting those under the age of 15 from undertaking employment of any form, and subjects those under the age of 18 to certain restrictions in order to protect their well-being.  For example, those under the age of 18 are prohibited from performing work involving smelting, hazardous chemicals and poisonous micro-organisms.[3]

Who's covered?

Since most issues concerning age discrimination generally arise in areas of employment, under Thai labour law, a distinction is made between an employee and an independent contractor, whereby only an employee can be protected under the LPA.[4]  The LPA further provides that individuals in government administrations and state enterprises shall be exempt from the provisions of the LPA.[5]

What enforcement/remedies exist?

With the exception of employing children under the age of 15, there is generally no criminal sanction in relation to age discrimination in Thailand.[6]

However, pursuant to the LPA, if an employer hires children under the age of 15 or 18 and fails to comply with the restrictions mentioned above, the employer may be liable to a fine not exceeding THB 20,000 (approx. £365).[7]

What claims are most common and what are the trickiest issues for employers?

Claims concerning age discrimination, particularly in hiring processes, are relatively uncommon in Thailand.  This, arguably, stems from the lack of specific legal protection and the lack of general awareness in relation to age discrimination.  In fact, it appears to be common practice amongst Thai employers to specify the age limit in their recruitment processes.

However, a more prevalent issue appears on the other end of the spectrum in unfair termination by reason of age.  Whilst an employer is generally allowed to terminate an employee’s employment at any time, provided they give advance notice and make a statutory severance payment as required by the LPA, they may nevertheless run the risk of such termination being considered as ‘unfair’ under the Labour Courts and Labour Procedure Act 1979 (“LCLPA”).[8]

In the event where an employee believes that their termination of employment was unfair, they can file a civil lawsuit with the Labour Court against their employer on the basis of unfair termination.  To this end, one of the issues an employer may find tricky is that the term ‘unfair’ is not defined under the LCLPA.  However, this has been somewhat clarified by the Labour Court, as it has provided examples that would amount to unfair termination, such as termination without reason, termination without any fault on the employee’s part, and discrimination.  If the Court finds that the termination is unfair, it has the discretion to (i) order reinstatement of the employee on the same terms and conditions of employment upon which the employee had previously been employed, or (ii) award monetary compensation to the employee by taking into account several factors including the length of employment, the hardship that follows the termination and the reasons for the termination.[9]

Are there any specific exceptions in your law?

There are no specific exceptions in Thai law.

Retirement

Generally, private sector employers are entitled to specify a retirement age in an employment contract or company policy as they deem proper for their operations.  Nevertheless, regardless of whether the retirement age is specified, employers are generally entitled to terminate an employee’s employment at will, provided that they comply with the legal prerequisites as discussed above.

It is also important to note that forcing employees to retire by way of specifying the retirement age, whether stated in their employment contract or company policies, is considered an act of termination.  Thus, employees are entitled to statutory severance pay under Thai labour law if an employee is forced to retire upon reaching the retirement age specified in the employer’s policy.

However, for public sector employees, the law sets the default retirement age at 60 years old, though there are certain exceptions, such as senior judges and senior public prosecutors, who may retire at the age of 70.

Interesting cases

N/A

[1] See the Constitution of the Kingdom of Thailand 1997, and as amended in 2007, Section 30

[2] See the Constitution of the Kingdom of Thailand (Interim) 2014, Section 4

[3] See LPA 1998, Sections 44-52

[4] Note: the relationship between the contractor and its employer is governed by the provisions on ‘Hire of Work’ under the Thai Civil and    Commercial Code.

[5] LPA 1998, Section 4

[6] See LPA 1998, Section 148

[7] LPA 1998, Sections 146 and 149

[8] See Section 49

[9] Labour Courts and Labour Procedure Act 1979, Section 49