‘Too old for the job’: Is this workplace discrimination under S’pore’s proposed law?
SINGAPORE - The Tripartite Committee on Workplace Fairness on Friday proposed a framework for workplace fairness legislation that prohibits workplace discrimination based on five characteristics: ationality; age; sex, marital status, pregnancy status and caregiving responsibilities; race, religion and language; and disability and mental health conditions. Making an adverse employment decision because of any of these traits can be seen as discriminatory.
The five traits are the most commonly reported forms of workplace discrimination, and together account for more than 95 per cent of discrimination complaints received by the Tripartite Alliance for Fair and Progressive Employment Practices (Tafep) and the Ministry of Manpower from 2018 to 2022, said the committee in its report.
These are some examples from the report of what could count as discrimination under the law, and what will not.
1. Nationality
Yes
A Singaporean job seeker applies for a senior role in a company, and fully meets the job requirements, including the required technical expertise and years of relevant work experience. However, the interview records show that the hiring manager did not consider the Singaporean candidate fairly and offered the job to a foreigner only because the foreigner is of the same nationality as the hiring manager.
No
A foreign job seeker applies for an opening in a firm. The job seeker is told by an interviewer that the firm is looking to hire a Singaporean, as locals provide a stable long-term workforce for their business, and have local knowledge and networks which add value to the business. This would not be a breach of the legislation.
2. Age
Yes
A job seeker applies to be a facilitator for children’s workshops. During the interview process, the employer asks about the job seeker’s age. After she replies that she is 50 years old, the employer says that she is not suitable for the role, as they prefer a younger person who would be more energetic.
No
As part of the selection process for a finance role, an employer requires all job seekers to take and pass a numeracy test. Older workers performed poorer on this test than younger workers. Even if the employer did not intend to discriminate against older workers and has a reasonable basis to require the numeracy test, some workers may see the disparity in test results as a form of indirect discrimination, where an apparently neutral company practice effectively puts certain people at a disadvantage.
Indirect discrimination was not included in the proposed framework, as such grey situations could be frequently litigated and lead to considerable uncertainty for employers and employees, said the Tripartite Committee on Workplace Fairness. However, Tafep will assess and take up such cases where appropriate.
3. Sex, marital status, pregnancy status, caregiving responsibilities
Yes
Pregnancy
A job seeker is offered a role as a finance officer. A pre-employment medical check-up reveals that she is pregnant. The company subsequently retracts the offer, saying that the nature of the job is not suitable for a pregnant employee, even though it is a desk-bound role.
Expressed desire to bear a child
An employee applying for her company’s talent development scheme is asked during the interview process if she plans to start a family, and she says she is keen to do so soon. She does not get a place, and her employer says this is because the interview panel felt that she would not be suitable for the high demands of the scheme due to her family plans.
Caregiving responsibilities
A male employee is the primary caregiver of his father. With the agreement of his supervisor, he has been taking time off work to accompany his father to medical treatments several days a week, while meeting his work requirements and maintaining performance standards. His supervisor later tells him that the company has decided to let him go so that he can concentrate on his caregiving responsibilities.
No
A wellness establishment hires female therapists, as their job is to give body massages and spa treatments to female customers. Employers can consider a protected characteristic in employment decisions if it is a genuine and reasonable job requirement, a principle already established in the Tripartite Guidelines on Fair Employment Practices.
4. Race, religion, language
Yes
A hiring manager conducts a panel interview with two candidates. Candidate A is of the same race as the hiring manager and Candidate B is of a different race. The interview panel assesses and documents in its interview records that Candidate B is more qualified for the role. However, the hiring manager offers the job to Candidate A, as he feels more comfortable working with someone of the same race.
No
A mosque is hiring an administrative assistant, and states that applicants should be Muslim. Religious organisations are permitted to make employment decisions based on religion and appropriate religious requirements, under the mooted law.
5. Disability and mental health conditions
Yes
A new hire’s colleagues observe episodes where his mood seems particularly down, although his work performance is unaffected. During a routine check-in, the new hire’s manager asks if he has any mental health conditions. He replies that he has depression, but the condition is being managed with psychiatric help. He is dismissed with notice a week after that conversation.
No
A company interviews two candidates for a website designer role. Both candidates score well on their tests and interviews. One has a disability and requires the use of a wheelchair, while the other does not have a disability and has slightly more years of experience. If the company selects the candidate with a disability for the role, it would not be a breach of the legislation, as employers should be supported if they wish to hire persons with disabilities.
Full list of recommendations by the Tripartite Committee on Workplace Fairness
Strengthen protections against workplace discrimination
- Define direct discrimination clearly as making an adverse employment decision because of any protected characteristic
- Prohibit workplace discrimination on the basis of five protected characteristics: (i) nationality, (ii) age, (iii) sex, marital status, pregnancy status, caregiving responsibilities, (iv) race, religion, language and (v) disability and mental health conditions
- Retain the Tripartite Guidelines for Fair Employment Practises (TGFEP), instead of replacing it with the mooted law
- Cover all the stages of employment: pre-employment (e.g. recruitment), in-employment (e.g. promotion, performance appraisal, training) and end-employment (e.g. dismissal)
- Prohibit prospective employers from using words or phrases that indicate a preference based on any protected characteristic in job advertisements
- Enshrine the current Fair Consideration Framework job advertising requirement in law
- Prohibit employers from retaliating against those who report workplace discrimination or harassment
- Include additional guidelines in the TGFEP to provide greater clarity that corporate service buyers, such as property management companies, and intermediaries, such as platform operators, should not discriminate based on characteristics that are not related to the job
Provisions to support business or organisational needs and national objectives
- Allow employers to consider a protected characteristic in employment decisions if it is a genuine and reasonable job requirement
- Exempt small firms with fewer than 25 employees from the legislation for a start, with a review in five years
- Allow religious organisations to make employment decisions based on religion and appropriate religious requirements, such as conformity with religious beliefs and practices
- Support employers that wish to hire persons with disabilities or seniors aged 55 and above
- Issue a tripartite advisory on providing reasonable accommodations to persons with disabilities
Processes for resolving grievances and disputes while preserving workplace harmony
- Require employers to put in place proper grievance handling processes internally that protect the confidentiality of the identity of those who report workplace discrimination and harassment, where possible
- Keep the Tripartite Alliance for Fair Employment Practices as the first port of call outside the firm for workers who experience discrimination
- Require compulsory mediation for workplace discrimination claims at the Tripartite Alliance for Dispute Management (TADM) first, with adjudication at the Employment Claims Tribunals (ECT) as a last resort
- Unions should continue to play a constructive role in dispute resolution for workplace fairness and support their members in the claims process
Ensuring fair outcomes through redress for victims of workplace discrimination, and appropriate penalties for breaches
- At TADM mediation, focus on educating employers on correct practices and mending the employment relationship where practicable, and not primarily monetary compensation
- Allow the ECT to order a compensation amount of up to $5,000 for pre-employment discrimination claims, as well as up to $20,000 for non-union members, and up to $30,000 for union-assisted claims, for in-employment and end-of-employment claims
- Empower the ECT to strike out frivolous or vexatious claims and award costs of up to $5,000, to be paid to the respondent by the claimant whose claim was struck out
- Allow the State to concurrently conduct investigations with a view to taking enforcement action where the claim involves a suspected serious breach of legislation
- Provide a range of penalties – including corrective orders, work pass curtailment and financial penalties – that can be imposed against firms and/or the person responsible for the breach of legislation, depending on the severity of the breach
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