By Cather­ine Ram­nar­ine

Ear­li­er this year, US Pres­i­dent Joe Biden an­nounced that he would end his pres­i­den­tial re-elec­tion cam­paign. This fol­lowed months of pub­lic spec­u­la­tion re­gard­ing the per­ceived men­tal and phys­i­cal fit­ness of both Pres­i­dent Biden, 81 and fel­low pres­i­den­tial can­di­date Don­ald Trump, 78 to hold such an im­por­tant of­fice. While we should all be wary of mak­ing arm­chair di­ag­noses, the spec­u­la­tion sur­round­ing Biden and Trump il­lus­trate the con­cerns and pre-con­cep­tions that many have re­gard­ing old­er per­sons in the work­place. With peo­ple liv­ing longer and many of them want­i­ng, or in some cas­es need­ing, to con­tin­ue to work for fi­nan­cial and oth­er rea­sons, it is im­por­tant for em­ploy­ers to con­sid­er the im­pli­ca­tions of an age­ing work­force.

Age Dis­crim­i­na­tion:

In many coun­tries, age is in­clud­ed as a pro­tect­ed char­ac­ter­is­tic un­der an­ti-dis­crim­i­na­tion leg­is­la­tion. This means that em­ploy­ers are legal­ly pro­hib­it­ed from dis­crim­i­nat­ing against em­ploy­ees or prospec­tive em­ploy­ees on the ba­sis of their age. How­ev­er, this is not the case in T&T. While our Equal Op­por­tu­ni­ty Act (“EOA”) pro­hibits em­ploy­ers from dis­crim­i­nat­ing against em­ploy­ees on the ba­sis of cer­tain pro­tect­ed sta­tus­es, age is not one of them. This means that if an em­ploy­ee has been de­nied em­ploy­ment, or a pro­mo­tion, or some oth­er em­ploy­ment ben­e­fit as a re­sult of their age, they have no re­course un­der the EOA.

The Equal Op­por­tu­ni­ty Com­mis­sion has pro­posed that age be added as a sta­tus ground for pro­tec­tion un­der the EOA. How­ev­er, it re­mains to be seen if and/or when the EOA will be amend­ed.

Re­tire­ment:

In coun­tries where age is a pro­tect­ed char­ac­ter­is­tic un­der an­ti-dis­crim­i­na­tion leg­is­la­tion, hav­ing a manda­to­ry re­tire­ment age can be con­sid­ered a form of age dis­crim­i­na­tion. How­ev­er, as not­ed above, this is not the case in Trinidad and To­ba­go.

The con­cept of re­tire­ment in­volves both (i) the end of the em­ploy­ment re­la­tion­ship and (ii) the re­tiree’s abil­i­ty to ac­cess re­tire­ment ben­e­fits or a pen­sion.

In T&T, there is a manda­to­ry re­tire­ment age of 60 for pub­lic sec­tor work­ers. There is no legal­ly pre­scribed re­tire­ment age for pri­vate sec­tor work­ers. How­ev­er, pri­vate sec­tor em­ploy­ers can and of­ten do im­ple­ment manda­to­ry re­tire­ment ages as part of the terms and con­di­tions of em­ploy­ment. Such manda­to­ry re­tire­ment ages can be en­forced.

Ac­cess to re­tire­ment ben­e­fits un­der the Na­tion­al In­sur­ance Scheme is gov­erned by the Na­tion­al In­sur­ance Act. An em­ploy­ee who has con­tributed to NIS qual­i­fies for this re­tire­ment ben­e­fit (i) at any time be­tween the ages of 60 or 65 if they have re­tired from em­ploy­ment or (ii) at age 65, whether or not they re­tire from em­ploy­ment. In ad­di­tion to NIS ben­e­fits, em­ploy­ees may be en­ti­tled to a pen­sion or oth­er re­tire­ment pay­ment un­der the terms and con­di­tions of their em­ploy­ment. El­i­gi­bil­i­ty will de­pend on the terms of the ap­plic­a­ble pen­sion plan or em­ploy­ment con­tract.

Ill Health and Per­for­mance Is­sues:

While age­ing does not au­to­mat­i­cal­ly equate to ill health, it is pos­si­ble that old­er em­ploy­ees may ex­pe­ri­ence health chal­lenges.

It is im­por­tant to bear in mind that, while age is not a pro­tect­ed sta­tus un­der the EOA, dis­abil­i­ty is. The EOA pro­tects per­sons with dis­abil­i­ties from dis­crim­i­na­tion in the work­place. It de­fines ‘dis­abil­i­ty’ as (i) to­tal or par­tial loss of a bod­i­ly func­tion (ii) to­tal or par­tial loss of a part of the body (iii) mal­func­tion of a part of the body in­clud­ing a men­tal or psy­cho­log­i­cal dis­ease or dis­or­der or (iv) mal­for­ma­tion or dis­fig­ure­ment of part of the body. No­tably, de­men­tia and cog­ni­tive im­pair­ment can be con­sid­ered dis­abil­i­ties un­der the EOA.

The EOA does carve out ex­cep­tions. It does not ap­ply to the em­ploy­ment of a per­son with a dis­abil­i­ty if:

* (a) Tak­ing in­to ac­count the per­son’s past train­ing, qual­i­fi­ca­tions and ex­pe­ri­ence rel­e­vant to the par­tic­u­lar em­ploy­ment and, if the per­son is al­ready em­ployed by the em­ploy­er, the per­son’s per­for­mance as an em­ploy­ee, and all oth­er rel­e­vant fac­tors that it is rea­son­able to take in­to ac­count, the per­son be­cause of dis­abil­i­ty — (i) would be un­able to car­ry out the in­her­ent re­quire­ments of the par­tic­u­lar em­ploy­ment; or (ii) would, in or­der to car­ry out those re­quire­ments, re­quire ser­vices or fa­cil­i­ties that are not re­quired by per­sons with­out a dis­abil­i­ty and the pro­vi­sion of which would im­pose an un­jus­ti­fi­able hard­ship on the em­ploy­er;

* Be­cause of the na­ture of the dis­abil­i­ty and the en­vi­ron­ment in which the per­son works or is to work or the na­ture of the work per­formed or to be per­formed, there is or like­ly to be — (i) a risk that the per­son will in­jure oth­ers, and it is not rea­son­able in all the cir­cum­stances to take that risk; or (ii) a sub­stan­tial risk that the per­son will in­jure him­self.

There are pro­fes­sions and oc­cu­pa­tions that re­quire high lev­els of phys­i­cal or men­tal skill or that are in­her­ent­ly dan­ger­ous—for ex­am­ple the mil­i­tary, the ju­di­cia­ry or air­line pi­lot —where hav­ing cer­tain phys­i­cal or men­tal dis­abil­i­ties would make the em­ploy­ee un­able to car­ry out the in­her­ent re­quire­ments of the job, or would make them a po­ten­tial dan­ger to them­selves or oth­ers.

Such cir­cum­stances may fall un­der the ex­cep­tions in the EOA, mean­ing that the em­ploy­er would be jus­ti­fied in ter­mi­nat­ing the em­ploy­ee’s em­ploy­ment on med­ical grounds. That said, any such ter­mi­na­tion must be done in ac­cor­dance with the re­quire­ments of good in­dus­tri­al re­la­tions prac­tice, which re­quires that med­ical ter­mi­na­tions must be based on an un­equiv­o­cal med­ical as­sess­ment of the em­ploy­ee’s fit­ness to work, and that em­ploy­ees be giv­en an op­por­tu­ni­ty to be heard be­fore a fi­nal de­ci­sion is made.

One key thing to re­mem­ber is that any ter­mi­na­tion on med­ical grounds must be based not just on an em­ploy­er’s as­sump­tions re­gard­ing the em­ploy­ee’s age, but on the em­ploy­ee’s ac­tu­al fit­ness and abil­i­ty to per­form the job in ques­tion as in­formed by med­ical opin­ion. In many cas­es, an em­ploy­ee suf­fer­ing from health chal­lenges may still be able to con­tin­ue work­ing ef­fec­tive­ly and safe­ly, with or with­out dis­abil­i­ty ac­com­mo­da­tions.

As we have dis­cussed in this ar­ti­cle, age is not a pro­tect­ed sta­tus in Trinidad and To­ba­go, and em­ploy­ers with manda­to­ry re­tire­ment ages in place can en­force them. That said, with chang­ing pop­u­la­tion de­mo­graph­ics, it is pos­si­ble that as­sump­tions and stereo­types about old­er work­ers may change.

Some ad­vo­cates for elim­i­nat­ing manda­to­ry re­tire­ment ages con­tend that they amount to ageism. They sug­gest that the ob­jec­tives of en­sur­ing an em­ploy­ee’s abil­i­ty to per­form ef­fec­tive­ly and safe­ty can be achieved by pe­ri­od­ic fit­ness test­ing. Cer­tain­ly in Trinidad and To­ba­go, the gov­ern­ment has dis­cussed pro­pos­als to in­crease the min­i­mum re­tire­ment age for NIS pur­pos­es from 60 to 65. It is there­fore use­ful for em­ploy­ers to con­sid­er, and per­haps in some cas­es re­con­sid­er, their ap­proach to the man­age­ment of old­er per­sons in the work­place.

Cather­ine Ram­nar­ine is a part­ner at M. Hamel-Smith & Co. She can be reached at mhs@trinidad­law.com

Dis­claimer: This Col­umn con­tains gen­er­al in­for­ma­tion on le­gal top­ics and does not con­sti­tute le­gal ad­vice