The concept of equal treatment is recognised by Thai labour laws and is evident in the Thai Labour Protection Act (LPA) in which Section 53 clearly states that when performing the same work or work of a similar nature, the employer must give their employees equal wages, overtime pay, holiday pay and overtime on holiday pay, whether the employee is male or female.
In 2019, Section 53 was amended to include work of the same value. In other words, if the value of work done by a male employee and a female employee is the same, both shall be treated equally in terms of the wage, overtime pay, and holiday pay.
Additionally, Section 15 of the Labour Protection Act requires an employer to treat male and female employees equally in employment, unless the description or nature of work prevents such treatment. As seen from its provision, Section 15 does not limit the equal treatment requirement to only specific statutory payments, but also sets the broader requirement that in employment, employers must not treat employees differently based on their gender unless it falls under the exceptions mentioned above.
The Supreme Court previously ruled that Section 15 of the LPA does extend to the issue of retirement age for different genders too. In this regard, the LPA however does not prescribe a mandatory retirement age. There have been some instances of companies prescribing different retirement ages for employees of different categories and genders. For example, some companies may prescribe the retirement age to be at 50 for most female employees, 55 for female workers in management roles or with special skills, and 60 for male employees regardless of their position. However, whilst the employer may have some freedom to set the retirement age as it deems appropriate, the Supreme Court in 2006 ruled in a case where an employer decided to set the retirement age differently for its male and female employees without any justification (55 years old for male employees and 50 years old for female employees) that such retirement policy was unlawful.
Therefore, based on this court precedent, if employers set a retirement policy for different ages based solely on the gender of the employees, they may have violated the LPA. However, if an employer has other genuine reasons for doing so as opposed to its own personal bias or prejudice against employees (eg it is genuinely necessary to set different retirement ages due to the different characteristics or the nature of the employee's work), then it remains to be seen how the court would approach this case and if it will find the different retirement age policy to be illegal.
It will also be interesting to see how most employers would justify this in practice given that nowadays no apparent gaps exist between how men and women perform in the same type of work.
Suriyong Tungsuwan is Head of the Labour and Employment Practice Group at Baker McKenzie in Bangkok. Nam-Ake Lekfuangfu is Partner and Theeranit Pongpanarat is Senior Associate in the same group.
