Employment law can often contain complex rules and regulations which play an important role in maintaining the relationship balance between employers and employees.
However, ignorance cannot be a defence if the company is considered an accessory to workplace wrongdoing. Hence the need for legal advice on workplace policies, dispute resolution, regulatory compliance, contractual disputes, etc cannot be overemphasised.
Similar support on how to understand these rules can also be obtained from relevant workshops that train employers to spot legal loopholes.
In this two-part series, we address some common Nigerian legislations that influence how workplaces should run.
TLDR; what constitutes offence for you as an employer?
- Make anyone enter an employment contract by fraud, falsehood, intimidation, coercion, or misrepresentation.
- Not providing a written employment contract three months after the employee has resumed work.
- Imposing on employees how they should spend their wages.
- Not allowing suitably spaced rest intervals between work hours or days.
- Not providing free transport or transport allowance where the employee is expected to travel 16 km or more from the normal place of work to another location for work reasons.
- Withholding wages when the contract hasn't been terminated.
Constitution of the Federal Republic of Nigeria, 1999
This is the fourth Constitution since Nigeria's Independence in October 1960. It was enacted on May 5, 1999, but only became binding on May 29, 1999.
The Constitution contains certain rights in Chapter 5 referred to as inalienable rights, for which the law has made special provisions. One which is often referred to in workplace conduct is the Right to Freedom from Discrimination
Right to Freedom from Discrimination
This is a fundamental human right which generally implies that no citizen should be treated unfairly or unequally solely based on affiliation with a particular community, ethnic group, gender, religion, political characteristics, or other protected attributes.
On the other hand, no citizen should be accorded a superior privilege or advantage based on community, ethnic group, gender, religion, political characteristics, or other protected attributes.
Specifically, Section 17, Subsection 3(a-e) covers a series of provisions towards employment.
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(a) all citizens, without discrimination against any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment;
(b) conditions of work are just and humane, and that there are adequate facilities for leisure and for social, religious and cultural life;
(c) the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused;
(d) there are adequate medical and health facilities for all persons;
(e) there is equal pay for equal work without discrimination on account of sex or on any other ground whatsoever.
The bottom line is that an employer can be slapped with a discrimination claim for refusing to hire, demoting, denying promotion, or outright firing an employee or potential employee for any of the factors mentioned earlier.
The Nigeria Labour Act (2004)
This is the primary law comprehensively governing the relationship between employers and employees in Nigeria. It covers various aspects of employment, including contracts, conditions of service, wages, termination, and trade unions.
It is important to note that the Act defines workers to exclude persons exercising administrative, executive, technical or professional functions as public officers or otherwise.
Contract of employment (Sections 7, 8, 9, and 13)
The Act states that an employer must give an employee a written contract -- which will include name, address, address of the worker, period of employment, wages, hours of work, and termination notice -- within three months of the commencement of the employment so that the employee knows what is expected of them. Also, if there's any reason to alter any terms in the contract, the employee must be informed in writing within one month.
Except in apprenticeships, anyone under 16 is not allowed to enter a contract of employment. Unless included, the employment contract is not binding on the employee's dependants or family.
Wages (Sections 1, 2, 4, 5, and 6)
An employer is only allowed to pay a worker's wages with legal tender. However, an employer may provide food, accommodation, or any other allowance as a part of a worker's remuneration if it is supported by law or by a collective agreement that it is acceptable in the industry where the worker is engaged.
Wages should be paid either daily, weekly, or monthly depending on what was stated in the contract. Where the period is monthly, salaries should be paid within the space of one month. That is, an employee should not sign an employment contract where payment will be made every six to eight weeks or quarterly.
Conversely, the Act does not allow employers to provide an advance of wages above one month's.
No employer has the right to impose on any employee how to spend their wages/salary.
If an employer mistakenly overpays an employee, the excess can only be deducted within three months from the date of overpayment.
Without prior written consent, an employer is not allowed to deduct from an employee's wages for any reason, unless it is deemed reasonable by an authorised labour officer because an employee caused injury or loss to the employer by willful misconduct or negligence.
There's an exception to deduction if it's for pension funds and other schemes or trade union contributions (if the employee is a member) as agreed by the employee and supported by the State Authority.
Termination of employment (Section 11)
An employer can give a notice of termination of employment if a worker is no longer ready and willing to perform their part of the contract -- save the incapacity is caused by a temporary illness -- or a breach of discipline or any other offence.
Notice of termination of employment contract where the notice is one week or more must be in writing.
Minimum notice periods for termination by either party are influenced by length of employment:
- 3 months or less — one-day notice
- 3 months but less than two years — one-week notice
- 2 years but less than five years — two-week notice
- 5 years or more — one-month notice
A contract can only be legally terminated at the expiry of the notice given by either party (excluding the day the notice was given).
Before the expiration of a notice, all wages payable in money, excluding overtime and other allowances, must be paid.
Other terms of employment (Sections 18 and 19)
This provides for an employee to be paid wages up to 12 working days in any one calendar year if taken as sick leave for a temporary sickness.
Once there's a dispute about an employee's fitness to continue working because of sickness, an authorised labour officer, whose decision will be final, should be allowed to preside over the matter to consider all medical reports.
After 12 months of continuous service, every worker is entitled to a holiday with full pay of at least six working days, exclusive of public holidays.
If a worker is at work for more than six hours a day, they must be given at least one hour of rest interval that day. Meanwhile, for every seven days an employee works, they are entitled to at least one day of rest, which must not be less than 24 consecutive hours.
All female employees are entitled to at least 12 weeks' maternity leave with full pay. However, the Act doesn't make provisions for paternity leave. For this, public and private establishments have varying stances.
