DISCRIMINATION IN THE WORKPLACE AND TERMINATION OF EMPLOYMENT

The Chartered Institute of Personnel Management of Nigeria (CIPM) is the regulatory body
for the practice of Human Resource Management in the country. The Institute was
established in 1968 and is chartered by Act 58 of 1992.
As a Professional body that is charged with the regulation and advancement of the practice
of Human Resource Management in Nigeria, we find unacceptable employment policies and
practices that are discriminatory. We strongly encourage organizations, whether public or
private, to always respect diversity, avoid discrimination and ensure a transparent and
equitable process in the treatment of all employees.

The Institute would like to highlight happenings and recent judgments delivered at the
National Industrial Court (NIC) following the amendment of the 1999 Nigerian Constitution in
2010, to educate our members, HR Practitioners and the HR community at large on the new
development on Labour matters as it regards the following:

a. Discrimination in the Workplace

b. Termination of Employment

1. DISCRIMINATION IN THE WORKPLACE

There is an anti-discrimination protection in the Constitution of the Federal Republic of
Nigeria, 1999 (Third Alteration) Act, 2010. Section 42 (1) and (2) of the Constitution
guarantees the right to freedom from discrimination on account of sex, religion, place of
origin or circumstance of birth. Discrimination in the workplace is also forbidden by Section
17 of the same Constitution. Section 17(3) of the Constitution further provides that “all
citizens, without discrimination of any group whatsoever, have the opportunity for securing
adequate means of livelihood as well as adequate opportunity to secure suitable
employment and that there is equal pay for equal work without discrimination on account of
sex, or any other ground whatsoever.”
When an employee is treated somewhat differently from other employees on grounds not
supported by contract or that are indeed in conflict with the law, such worker is said to have
been discriminated against. Sex, age, ethnicity, religion, trade union membership and
political opinion are some of the grounds upon which workers may be discriminated against
in Nigeria.
The International Labour Organisation (ILO) regards the elimination of discrimination in
respect of employment and occupation as a fundamental principle which all member states
are obliged to respect. Although Nigeria has ratified the ILO Equal Remuneration
Convention, 1951 and the Discrimination (Employment and Occupation) Convention,
1958, one can state without equivocation that the state of protection against discrimination in
Nigeria is very weak.
However, it is important to reiterate that Sections 17(3)(a) and 42 of the 1999 Nigerian
Constitution deals with the right to freedom from discrimination and guarantees the right of
every citizen to secure employment without discrimination. Employees could therefore still
bring litigation against employers or seek redress through the National Industrial Court of
Nigeria on the basis of the above pieces of legislation where there are perceived or alleged
cases of discrimination or unfair labour practices at work. The provisions of Section 254C
(1) (f) of the Constitution of the Federal Republic of Nigeria 1999 (Third Alteration) Act
2010 confers on the National Industrial Court, the jurisdiction to adjudicate on disputes
relating to or connected with unfair labour practices or international best practices in the
Nigerian Labour industry.

2. TERMINATION OF EMPLOYMENT
A fundamental principle of the Nigerian Labour law (except in cases where an employment
has statutory flavour) is that an employer or the employee can terminate the employment
with or without reasons subject to appropriate notices or payment in lieu. Dismissal on the
other hand must be justified because it results in the loss of terminal benefits and public
reproach. This common law position has been restated by the Supreme Court in many cases
and is given some statutory expression in Sections 7 (1) (e) and 11 of the Labour Act which
provide that the only requirement for termination is serving the appropriate notice on the
employee and that employment contracts must state the notice period. It is also settled law
that the terms of employment form the basis of the consideration of the rights of the parties
including issues such as termination and dismissal.
The common law is however fast changing as the National Industrial Court of Nigeria is
gradually moving away from this position. The law as it stands today is that employers of
labour must now give reason(s) for termination otherwise such termination becomes
wrongful and actionable. The common practice of stating that “the services of the employee
is no longer required” is no longer tenable in law.
“…the Termination of Employment Convention, 1982 (No. 158) and the Recommendation
No. 166 regulates termination of employment at the initiative of the employer. Article 4 of this
Convention requires that the employment of an employee shall not be terminated unless
there is a valid reason for such termination connected with his capacity or conduct or based
on the operational requirements of the undertaking, establishment or service. The
Committee of Experts has frequently recalled in its comments that; the need to base
termination of employment on a valid reason is the cornerstone of the Convention’s
provisions. This is the global position on employment relationship now. It is the current
International Labour Standard and International Best Practice.
Although this convention is not ratified by Nigeria; but since March 4, 2011 when the
Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010 came into
effect, this Court has the power under the Constitution to apply International Best Practice
and International Labour Standards to matters like this by virtue of section 254C (1) (f) and
(h) of the Constitution as amended “...I find that it is now contrary to international labour
standard and international best practice and, therefore, unfair for an employer to terminate
the employment of its employee without any reason or justifiable reason that is connected
with the performance of the employee’s work….I hold that it is no longer conventional in this
twenty first century labour law practice and industrial relations for an employer to terminate
the employment of its employee without any reason even in private employment” as quoted
in the case of ALOYSIUS v DIAMOND BANK by President, National Industrial Court, Justice
Babatunde Adejumo.
Now what is the international best practice and labour standards referred to by the National
Industrial court (NIC) as the ‘global position on employment relationship’ now? The
Termination of Employment Convention, 1982 (No. 158) and the Recommendation No. 166
is a convention by the ILO. The requirement for employers to provide a reason for
termination of employment appears to be the consensus at the NIC although this new
position is yet to be tested at the Court of Appeal.
What does the above mean for HR Practitioners?
CIPM hereby advises Employers, HR Practitioners, and the HR community to review all their
employment contracts, policies, procedures and processes to acquaint themselves with the
laws governing their employment relationship as a critical tool for HR success and business
partnering.
The following documents would be helpful in the review:
i. Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010
ii. National Industrial Court decisions
iii. International Labour Standards as promulgated through the ILO Conventions
iv. International Best Practice and Standards
Until the Nigerian Labour Act is robust enough to accommodate contemporary and ratified
Conventions, the international best practice and ILO Standards have become the laws used
in the National Industrial Court to deliver its judgements on labour related matters.
We would also advise members to read up on the following National Industrial Court (NIC)
cases and other labour law reviews books:
http://judgment.nicn.gov.ng/pdf.php?case_id=342
http://judgment.nicn.gov.ng/pdf.php?case_id=1215
https://nigerialii.org/ng/judgment/national-industrial-court-nigeria/2017/9
http://judgment.nicn.gov.ng/pdf.php?case_id=1154
http://judgment.nicn.gov.ng/pdf.php?case_id=1009
http://judgment.nicn.gov.ng/pdf.php?case_id=685
https://nigerialii.org/ng/judgment/national-industrial-court-nigeria/2017/10

Glossary of terms

1) Dismissal is the termination of employment by an employer against the will of the

employee.
2) Unfair dismissal is the term used to describe an employer's action when terminating an
employee's contract unfairly. Normally the employee's contract and employment
legislation protect the employee from being dismissed unfairly, and allow recourse in law.
3) Constructive Dismissal - Where the employee resigns or terminates his contract
(without notice) due to some action on the part of the employer which is in breach of the
contract, this is known as constructive dismissal.
4) Wrongful Dismissal - A wrongful dismissal is a dismissal in breach of contract and the
only relevant considerations for a court hearing such a claim will be the contractual
obligations of the employer.
5) Redundancy - Section 20 (3) of the Nigerian Labour Act defines Redundancy as the
involuntary and permanent loss of employment which usually arises as a result of excess
manpower. Excess manpower can arise from downsizing, rightsizing, restructuring,
acquisitions and mergers, or the outright outsourcing of some jobs to an independent
third party.
6) An employment is said to have a statutory flavour when the appointment and
termination is protected by statute or laid down regulations made to govern the
procedure for employment of an employee.
7) Termination of employment is when an employee’s contract of employment with an
employer ends.
8) Unfair labour practices is the unfair treatment by an employer of an employee or job
applicant. These practices include gender and racial discrimination, discrimination on
account of marital status, pregnancy and religious beliefs, denial of employees the right
to join trade unions, etc.
9) Notice is the timeline for which a contract of employment lasts