Preventing and defending discrimination claims
Perchstone and Graeys, Lagos
The working world is increasingly diverse: the demographics of a typical workforce comprises a mixture of genders, cultural backgrounds, ages and lifestyles. At the same time, attendant complaints of discriminatory practices/acts in the world/field of work can also easily become commonplace. This, among other factors, is adversely impacting the reputations of indicted employers.
Often, issues relating to discrimination in the workplace are not determinable by reading through the letters of the contractual documents of engagement. The freedom of contract is often limited in relation to the contents of the employment relationship and the means by which the relationship may be terminated. The legitimate expectation of a fair working environment, devoid of discriminatory practices based on gender, race, religion, age, or disability (among other protected traits) is, however, one of the best labour practices and standards that the International Labour Organisation (ILO) promotes.
The International Labour Organisation’s Discrimination (Employment and Occupation) Convention 1958 (No 111) defines discrimination as any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. It requires ratifying states to declare and pursue a national policy, which is designed to promote (by methods appropriate to national conditions and practice) equality of opportunity and treatment in respect of employment and occupation, to eliminate any discrimination in these fields. The Convention covers discrimination in relation to access to education and vocational training, access to employment and to occupations, as well as terms and conditions of employment.
Nigeria as a case point
As a result of the renewed interest in labour and the world of work, the speed and development of jurisprudence in labour matters during the last few years has been quite remarkable. Employers of labour at all levels have been forced to awaken to the realisation that employees are much more than mere factors of production in the larger service or manufacturing chain. The National Industrial Court of Nigeria (NICN), which is the first instance superior court of record with the exclusive adjudicating power on labour and industrial relations laws, has been quick to assert that employees have far-reaching rights, well beyond the common law prescriptions. With the coming into effect of the Constitution of Federal Republic of Nigeria (Third Alteration) Act 2010, there is now greater latitude for the NICN to apply international best practice when adjudicating labour/employment disputes. The Court is enjoined to have regard to ‘international best practice in labour, employment and industrial relation matters’ and ‘the application or interpretation of international standards’. Section 254C(2) of the 1999 Constitution gives the NICN the jurisdiction to deal with any matter connected or pertaining to the application of any international convention, treaty or protocol relating to labour, employment, workplace, industrial relations or connected matters, which Nigeria has ratified.
Various inadequate and outmoded laws in Nigeria, such as the extant 1970s-enacted Labour Act, which still governs many present-day workplace issues, have paved the way for the application of the ILO Conventions in cases coming before the NICN. Significantly, some of these cases have illustrated the gaps in the measures, policy and procedures that should be in place to prevent, and/or successfully resist a discrimination claim. Below are a few examples.
Discrimination on the grounds of pregnancy/gender
The NICN has stood against the termination of jobs based on pregnancy. In Mrs Folarin Oreka Maiya v The Incorporated Trustees of Clinton Health Access Initiative, Nigeria & 2 ors, the Applicant brought an action to enforce her fundamental rights against discrimination. She claimed that her appointment was terminated by the first Respondent simply because she became pregnant and that the ratification of the same by the second and third Respondents constituted a violation of her fundamental rights to human dignity and freedom from discrimination.
The Applicant had been employed through a competitive process, having been found to be suitably qualified for the job. She was never reprimanded or queried, nor told that her work was unsatisfactory, at any time. When she informed her immediate supervisor that she was pregnant, this supervisor replied by saying that she would try her best to ensure the Applicant kept her job. A few hours after this ‘assurance’, during which time her immediate supervisor had informed the Country Director of her pregnancy, her employment was terminated. The Applicant concluded that the Respondents terminated her appointment because of her pregnancy. The Applicant sued and the Respondents contended, in defence, that they had the right (recognised and preserved by the common law rule of master-servant relationship applicable in Nigeria) to ‘hire and fire’, keeping to the terms of the contract. The Respondents further contended that, having issued payment in lieu of notice (which the Applicant had accepted), the Applicant no longer had the legal right to challenge the termination of her employment.
In reaching its determination, the Court referred to the Discrimination (Employment and Occupation) Convention 1958 (No 111), considering this to be a claim of unlawful termination of employment on the basis of pregnancy. It also made apt reference to foreign decisions in coming to the conclusion that termination on the grounds of pregnancy must attract an award of heavy damages.
Similarly, in Mrs Amaechi Lauretta Onyekachi v Stanqueen Investment Limited, a pregnant employee applied to take maternity leave. The employer denied receiving the application for maternity leave. A few days later, the employee was called to the employer’s head office and asked to resign with immediate effect. She refused and was, on the same day, issued with a letter of termination of her employment headed ‘redundancy’. She sued for damages, alleging ‘malicious and unlawful termination of employment’. The employer/defendant contended that the termination was done as a result of recent reorganisation within the company.
Given the background facts, and making an apt reference to the foregoing earlier decision of the NICN (in Mrs Folarin Oreka Maiya v The Incorporated Trustees of Clinton Health Access initiative, Nigeria & 2 ors), where the court affirmed that termination on the grounds of pregnancy will attract the award of heavy damages, the court rightly found that ‘the defendant terminated the claimant’s employment given her pregnancy and due delivery date, (and) not because of any reorganisation’. An award of general damages was consequently made against the defendant.
HIV/AIDS discrimination in the workplace
Two major pieces of legislation, the HIV & AIDS (Anti-Discrimination) Act 2014 (the Act) and the National Workplace Policy on HIV & AIDS 2013, prohibit all forms of discrimination relating to an employee’s HIV status. The Act aims to create a supportive, safe and enabling working environment for people living with HIV/AIDS. It also seeks to promote effective management of people living with HIV in the workplace and give effect to the constitutional right of Nigerian citizens to dignity of human person and freedom from discrimination.
No employer or employee is permitted to discriminate against any person on the basis of the person’s HIV/AIDS status in employment, delivery of services or other benefits. The objectives of the National Workplace Policy on HIV & AIDS are to ensure the development of policies and programmes within the framework of decent work in the formal and informal domains of the private and public sectors.
The main obligations incumbent upon each employer, that aim to prevent or address gender discrimination, are as follows.
First, employers are prohibited from requiring employees to disclose their HIV status (directly or indirectly) and from conducting compulsory pre-employment HIV testing as a precondition to an offer of employment. The exception to this rule is when two competent medical authorities certify that failure to take such tests constitute a clear and present danger of HIV transmission to others (section 9).
Second, employers must refrain from disclosing any employee’s HIV status unless the employer has obtained the written consent of the employee, or the disclosure is required by law (section 11).
Third, employers are obligated to protect the health and medical records of all persons living with HIV or affected by AIDS and must also provide a safe workplace. This includes ensuring that the risk of occupational exposure to HIV is minimised (sections 15 and 16).
Moreover, employers are required to report all cases of occupationally acquired HIV infections to the Minister of Labour and Employment from the date of discovery of such infections (section 17).
In addition to this, employers must provide reasonable support to employees who become infected with HIV in the workplace, including the costs of medical tests and supply of medicines and treatment for opportunistic infections (section 18).
Employers must also pay compensation to, or assist with, the application for compensation benefits for employees who become infected with HIV in the course of employment (section 19).
Finally, employers must integrate the rights of employees living with or being affected by HIV or AIDS and the remedies available to them in the event of a breach of such rights.
Employers with more than five employees, in consultation with their employees/employee representatives, are expected to adopt a written workplace policy that is consistent with the National HIV and AIDS Workplace Policy of the Federal Republic of Nigeria.
In Suit No. NIC/LA/265/2015 Mr X v Smridu Nigeria Limited, X was employed as a kitchen assistant by Smridu Nigeria Ltd (Smridu) and was deployed to the canteen of FrislandCampina WAMCO Nigeria Ltd. X was then discovered to be HIV-positive, in a routine medical test carried out by the company. Once it was discovered he was HIV-positive, he was told by his line manager to ‘go home and take care of himself and never return to the office'. X sued Smridu, alleging his termination was due to the fact that he was discovered to be HIV-positive, which amounted to a breach of his constitutional rights to freedom from discrimination and freedom from inhuman treatment, and asked for general damages to the amount of NGN 2m, as well as aggravated damages to the amount of NGN 2m.
Based on the facts, the NICN had no difficulty in coming to the conclusion that the applicant was constructively dismissed from employment and that his dismissal amounted to a violation of his fundamental right to human dignity and freedom from discrimination, since it was ostensibly premised on his HIV status. The Court further held that it was unlawful for a company to mandate that its employees undergo any form of medical test, as doing so would amount to an invasion of the employees’ right to privacy. These actions were thus in contravention of section 10(d) of the Protection of Persons Living with HIV and Affected by Aids Law of Lagos State 2007, and of the ILO International Labour Standard on HIV and AIDS 2010 (No 200). The latter provides that ‘there should be no discrimination against or stigmatisation of workers, in particular jobseekers and job applicants, on the grounds of real or perceived HIV status or the fact that they belong to segments of the population perceived to be at greater risk of or more vulnerable to HIV infection.’
Workplace discrimination on account of gender/sex
A significant matter to note here is that employers are expected to have a rigorous sexual harassment policy in place, detailing minimal acts/conducts that are prohibited and the consequences of non-compliance. The policy should also state the procedure for reporting sexual harassment and include protection from victimisation for people who report harassment or victimisation in the workplace. The new regime of labour law in Nigeria in respect of workplace sexual harassment is to hold both the workplace sexual harasser and the employer vicariously liable, in deserving circumstances, for acts of sexual harassment perpetrated against the employee. Thus, in Ejike Maduka v Microsoft Nigeria Limited, an employee of Microsoft Nigeria brought an action against the Country Manager of Microsoft Nigeria, Microsoft Nigeria, Microsoft Corporation and her immediate line manager. The employee alleged that she had been consistently sexually harassed by the Country Manager and that, in response to her objections and warnings to desist, her employment was terminated. The Court, finding on the facts before it, applied the Convention on the Elimination of All Forms of Discrimination against Women and ILO Convention (No 111), to decide on the allegation of sexual harassment. It noted that the above-mentioned instruments ‘have been ratified by Nigeria and are applicable to construe the fundamental rights of the applicant expressly guaranteed in the 1999 Constitution as amended.’ In particular, the court held that: ‘The interpretation and meaning of CEDAW General Recommendation 19, ILO Convention (No 111), and the 1st and 2nd respondent’s [Microsoft Nigeria and Microsoft Corporation] anti-harassment and anti-discrimination policy is that sexual harassment is a form of discrimination based on gender.’
In a more recent decision of the NICN, Dorothy Adaeze Awogu v TFG Real Estate Limited, the NICN awarded damages of NGN 2.5m, in favour of the wronged employee. The NICN ruled against her employer on the basis of physical harassment and discrimination at work, which was based on the circumstances of the employee’s birth and false imprisonment.
The above examples are by no means an exhaustive list of the possible discrimination claims that may be brought, nor of attendant reputational damage to an employer’s brand and image. The contract of employment is the bedrock of the relationship between employer and employee. In the law, it is commonplace that contractual terms can be implied as well as expressed. To avoid being vicariously liable for a discriminatory act, and/or engaging in a discriminatory practice which the work policy or staff handbook did not expressly forbid, it is pertinent to make clear, in expressed terms, what the employer would accept as minimal standards of compliance within the workplace. In making assumptions as to what is implicitly forbidden, it must always be noted that that which is not expressly forbidden for human beings must be construed as permissible, in order not to curtail fundamental freedoms. The case of Joshua Abiodun Babalola v State Security Services (SSS) on the right to wear tattoos in the workplace presents an interesting scenario. The Court, in finding that the defendant could not rightly base the termination of the employment of the claimant on bodily tattoos worn on the claimant’s skin, examined the factual and documentary details before it. It came to the conclusion that, although an employer is at liberty to set dress codes and standards of dress and appearance for employees (for example, through stipulations in the company handbook), where such rules do not expressly exist, basing the termination of employment on such criteria amounts to a form of workplace discrimination.
 ‘Rules of the game: A brief introduction to International Labour Standards’, 33.
 Unreported suit No NICN/LA/271/2014 delivered on 4 December 2015
  41 NLLR (Pt 125) 67 NICN
 Unreported Suit No NICN/LA/262/2013; judgment delivered on 4 June 2018,
 Unreported suit No NICN/LA/605/2015 delivered on 10 July 2017