Employers lose powers to set staff retirement age in new Bill

Employers are set to find it difficult to retrench or lock out older staff during recruitment if proposed amendments to the Employment Act are passed into law.

The Employment Act (Amendment) Bill 2019 has listed age among grounds that employers should not discriminate against prospective and existing employees.

Private companies currently have internal human resource policies that state their employees’ retirement age while the retirement age for government workers, which is currently set at 60, is stipulated in regulations to the Public Service Act.

Legal experts say the amendment Bill, which seeks to change several other sections in the Employment Act 2007, will make it difficult for employers to retire or fail to hire a staff on the basis of their age.

“This means old people are going to compete for the same jobs with young people, and if the reason why you are not hiring the older persons is age, then you are guilty of discrimination,” said William Maema, the lead partner for commercial and corporate department at IKM Advocates.

Discrimination

“It will also mean that if you (an employer) have a policy that says at the age of 60 or 50, you (an employee) must go home, then that will be in breach of the law.”

Age, dress, conscience, language or (place of) birth are some of the new grounds for discrimination that the State Department for Labour is seeking to add to Section 5 of the Employment Act 2007 through the proposed amendments.

Current grounds which employers can be cited for discrimination in recruitment and employment are race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental or HIV status.

Companies usually consider age in hiring new staff as well as implementing restructuring strategies such as retrenchment and early retirement programmes.

Federation of Kenya Employers (FKE) executive director Jacqueline Mugo did not respond to our requests for comment on the Bill.

Current law

The Labour ministry says the review of the current law is aimed at aligning it with the Constitution, largely Section 27 on equality and freedom from discrimination, as well as update it with changing trends in labour laws.

The public had until May 15 to submit feedback on the Bill.

The changes will also give clarity on matters of working hours, leave days and protection of employees’ data while also addressing contractual or freelance work and less permanent jobs, status of employees in mergers and acquisition.