Rights And Obligations of Employers and Employees In the Nigeria Labour System By Daniella Ikeokwu-Nwoko
202101.28
Rights And Obligations of Employers and Employees In the Nigeria Labour System By Daniella Ikeokwu-Nwoko
by Daniella in Article
Increasing anecdotal evidence suggests increased reports of excessive exploitation of employees by the employers and the deplorable work conditions that most employers have to contend with, the need to educate the general public on the rights, duties and obligations of the employer and employee is most imperative. Unfortunately due to the abundance of information encapsulated under this topic, I would prefer to limit the scope of this article for ease of understanding.
Who is an employer?
An employer generally has the right to carry out background checks in relation to applicants, subject to certain restrictions. Section 37 of the 1999 Constitution of Nigeria (as amended) provides for the protection of privacy of citizens. Therefore, an employer can only obtain personal information regarding an applicant’s past, health or criminal record provided that the information is relevant, reasonable and lawful. Background checks can be conducted by a third party on behalf of the employer.
Right To an Employment Contract /Letter of Employment
By virtue of Section 7 the Labour Act, an employer must give its employee(s) a written employment contract no later than three months after the start of the employment period. As the Labour Act does not apply to all categories of employees in Nigeria, certain employment relationships are entered into orally (although this is not common).
THE EMPLOYMENT CONTRACT MUST INCLUDE THE FOLLOWING INFORMATION:
- The name of the employer or group of employers, or of the undertaking by which the worker is employed (where relevant).
- The name and address of the employee and the place and date of their engagement.
- The nature of the employment.
- If the contract is for a fixed term, the date when the contract expires.
- The period of notice to be given by a party wishing to terminate the contract, subject to section 11 of the Labour Act
- The rates of wages, their method of calculation, and the manner and periodicity of payment of wages.
- Any terms and conditions relating to:
- working hours;
- holiday and holiday pay;
- incapacity to work due to sickness or injury, including any provisions for sick pay; and
- any special conditions of the contract
The Nigerian employment law does not specify the language in which a contract of employment must be written. However, employment contracts are written in English, as English is the official language in Nigeria. If an employee does not understand English, the terms of the contract must be read and explained to that employee in the language that they understand and consent to.
Implied terms
Certain terms are implied into contracts of employment. Implied terms derive from statute and judicial decisions.
AN EMPLOYEE HAS THE FOLLOWING IMPLIED OBLIGATIONS:
- To use reasonable care and skill.
- To serve the employer with fidelity and in good faith.
- Not to disclose confidential information.
- To be ready and willing to work.
AN EMPLOYER HAS THE FOLLOWING IMPLIED OBLIGATIONS:
- To pay wages.
- To provide a safe workplace and safe work systems.
- To indemnify the employee against reasonable expenses in the performance of their employment.
- Not to disclose sensitive information regarding employees without their consent.
In certain instances, an employer can choose to unilaterally change the terms and conditions of employment however this is subject to some conditions. Namely: An employer pursuant to section 7 (2) of the Labour Act, that wants to unilaterally change the terms and conditions of employment must both:
- Inform the worker of the nature of the change in a written statement not more than one month after the change.
- If it does not leave a copy of the statement with the worker, keep the statement and ensure that the worker has reasonable opportunities of reading it during the course of their employment, or ensure that the statement is made reasonably accessible to the worker in some other way.
An employer wishing to impose changes that go beyond those authorised by the contract, without the employee’s express consent, can either:
- Impose the changes and accept the potential consequences which could be the employee can terminate the employment without notice if notice is required or the employee may sue the employer for breach of the agreement.
- Give notice of termination to the employee and simultaneously offer a new employment arrangement.
Working Hours
An employee’s employment contract normally states the expected working hours. Working hours can however be fixed by any of the following:
- Mutual agreement.
- Collective bargaining agreement within the organisation or industry concerned.
- An industrial wages board, where there is no collective bargaining procedure available.
See section 9 of the Wages Boards and Industrial Councils Act for details on the collective bargaining procedure.
The hours that an employee works in excess of the normal fixed working hours constitute overtime. A worker can opt-out of the working hours individually if their normal working hours are fixed by mutual agreement. A worker cannot opt-out individually where their working hours are fixed by a collective bargaining agreement. Any change must be agreed on collectively through the union and the organisation or industry.
Rest breaks
A worker who works six hours or more per day is entitled to one or more suitably spaced rest breaks of not less than one hour in aggregate. If the work involves continuous strain or is stressful, the worker must be granted the appropriate number of suitably adjusted and spaced breaks.
A worker who works seven days per week is entitled to one day of rest, which must not be less than 24 consecutive hours. Otherwise corresponding time off must be granted as soon as possible, or wages at overtime rates must be paid in lieu. See section 13 of the Labour Act
SHIFT WORKERS
Shift workers are also entitled to rest breaks. Women and young persons cannot work night shifts, subject to certain exceptions (Labour Act).
Holiday entitlement
MINIMUM PAID HOLIDAY ENTITLEMENT
A worker with a 12-month continuous period of employment is entitled to the following minimum annual paid holiday:
- Six working days, for persons under the age of 16 years (including apprentices).
- 12 working days. This excludes all public holidays and there are about 11 public holidays per year.
Entitlement to paid time off
Employees have the right to take time off in the case of illness or injury. The contract of employment may include specific provisions on sick pay. If not, an employee is entitled to the payment of wages for up to 12 working days in any calendar year during an absence from work caused by a temporary illness certified by a registered medical practitioner. The Employees Compensation Act makes provision for the payment of compensation to employees who suffer from work-related injuries or illnesses.
Sick pay must be paid by the employer. However, where the employer fails to pay or is insolvent, the employee can recover sick pay from the Nigeria Insurance Trust Fund Management Board, which manages the Employment Compensation Fund. See section 16 of the Labour Act.
Maternity Protection rights of parents and carers
Maternity protection refers to the protection granted to women in employment in order to enable them effectively combine their reproductive roles with that of their work. It is the recognition of the legal and social contributions made by women to the society by having children. It therefore becomes very important that every government and its society provides effective maternity protection. It is also necessary for the preservation of the rights and dignity of female workers who should be given equal opportunities like their male counterparts and have the right to be free from discrimination.
The scope of maternity protection has gone beyond the traditional concept of maternity leave and breast-feeding breaks to include seven key components. These are the scope of women covered, maternity leave, payment/benefits during the leave, health protection, job protection and non-discrimination, breastfeeding and child care facilities. Other types of related leave such as adoption leave, paternity leave and family leave are also being included in the general discussion on maternity protection. All these components make up maternity protection and none is less essential than the other.
Maternity leave is the most common form of maternity protection known. It is essential to safeguard the health of the mother and child as a longer leave period allows the mother more time to rest, take care of the child and effectively cope with the challenges of breastfeeding. Many national laws provide for part of the leave to be taken before and the other part after the delivery of the child. While mothers may be allowed to decide when to commence their leave, most national laws contain a compulsory six weeks post-delivery period in order to ensure the woman recovers before returning to work. The length of leave however varies from one country to another. A pregnant employee is entitled to 12 weeks’ maternity leave if she provides a written medical certificate from a medical doctor stating that she should not or cannot work. Nursing mothers are allowed half an hour twice a day to attend to their babies. See section 54 (1) of the Labour Act
The jobs of women who have taken maternity leave must be protected and they should be free from all discrimination resulting from this condition. This implies that such women must not be dismissed during the leave period and should be able to return to their work on the same level and salary as before. See Section 54(4) of the Labour Act. She must not be placed at a disadvantage compared to other colleagues that did not have to deal with reproductive challenges, hence all forms of accumulated seniority and other benefits should still be enjoyed by her. Non-discrimination encompasses that employers are not allowed to deny pregnant women or women in childbearing age employment. Employers cannot also require a pregnancy test or proof of sterilization or ask about child bearing plans of a potential or current employee.
Breastfeeding is very important and is regarded as the final stage of a woman’s reproductive cycle, hence an intrinsic part of maternity protection. Nursing women are entitled to a minimum of two thirty minutes breaks per day in an eight-hour work period for six to twelve months. The World Health Organisation (WHO) recommends exclusive breastfeeding for six months and continuous breastfeeding with complementary food till two years. It is therefore essential that breastfeeding breaks are granted to women. Consequently, breastfeeding facilities should be provided by employers in order to make this policy more effective. The barest minimum requirement is a room with a chair where the privacy of the female worker can be ensured, although more extensive facilities may be provided by the employer. Similarly, child care facilities (crèche) can also be provided by employers to ensure that mothers can continue breastfeeding their children upon returning to work.
Paternity rights
The Labour Act does not contain provisions on paternity leave. However, in Lagos State, civil servants are entitled to ten days’ paternity leave within the first two months from the birth of the baby.
About the Writer
Daniella Ikeokwu-Nwoko is a Counsel in the Law Firm of Chief Ladi Rotimi Williams Chambers. She obtained her LLB from Abia State University and her BL from The Nigerian Law School, Lagos. She is an efficient Litigation lawyer with a profound knowledge of corporate and commercial law.
DISCLAIMER: This article is only intended to provide general information on the subject matter and does not by itself create a client/attorney relationship between readers and our Law Firm. Specialist legal advice should be sought about the readers’ specific circumstances when they arise. If you do require any Legal Advice on this topic you may wish to seek legal advice or contact the law firm.