COVID 19 AND THE NIGERIAN WORKSPACE

Dear Subscriber,

The COVID-19 epidemic continues to spread rapidly and affected countries have resorted to containment by enforcing lockdowns of all social and commercial activities. Nigeria is not left out as Lagos and Abuja are on a full lockdown whilst there is partial lockdown in several other states.

This is having is having a huge impact on businesses and Employers/Employees have been scrambling to adjust to these new realities and reactions have ranged from layoffs, reduction in salaries and remote work policies. In this article we answer 5 frequently asked questions (FAQs) relating to the disruptions occasioned by the Covid-19 crisis.

FAQ 1

Can my Employer terminate my employment due to Lock Down?

Based on the Law, the Employer is allowed to terminate an Employee for no reason, provided the Employer complies with the notice period provision as contained in the Act and/or the Contract of Employment. See Section 11 of the Labour Act.

Within the probation period, the employment can be terminated with immediate effect unless the Employment Agreement states otherwise. For confirmed staff the Employer would have to comply with the notice period contained in the employment agreement. Notwithstanding the above, an Employer may rely on the doctrine of Force Majeure to avoid obligations contained in the Employment Agreement and it is expected this might be a recourse and a recurring dispute area Post Covid.  

FAQ 2

Can Employers encourage or force Employees to take leave?

Under Nigerian Law, a worker is entitled to annual leave of at least six working days with full salary. A worker must have worked for at least twelve months in order to qualify for annual leave.

There is no express provision on unpaid leave under Nigerian law and the only related provision this circumstance is Section 17(1) which provides that:

“Except where a collective agreement provides otherwise, every Employer shall, unless a worker has broken his contract, provide work suitable to the worker’s capacity on every day (except rest days and public holidays) on which the worker presents himself and is fit for work; and, if the Employer fails to provide work as aforesaid, he shall pay to the worker in respect of each day on which he has so failed wages at the same rate as would be payable if the worker had performed a day’s work”

Provided that-

(a) where, owing to a temporary emergency or other circumstances beyond the Employer’s control (the period of which shall not exceed one week or such longer period as an authorized labour officer may allow in any particular case), the Employer is unable to provide work, the worker shall be entitled to those wages only on the first day of the period in question;…’’

In the event of an emergency as is the case here, section 17 (1)a obligates the Employer to pay a day’s wages where it is unable to provide work due to a temporary emergency or circumstances beyond the Employer’s control. This also means that an Employer is not under compulsion to continue with the contract of service in such circumstances.

FAQ 3

Is an Employee entitled to full salary whilst working from home?

If the job allows it and if the Employer has provided the Employee with the equipment to enable him/her to do remote work, the Employer can oblige him/her to work. Such Employees receive standard salary unless otherwise advised by the Employer. Revision of the terms of employment of the Employees working from home might be needed.

FAQ 4

Can Employees be coerced to resume work?

Employees have the right to refuse dangerous work. In such circumstances, an Employee who believes that the condition of a place of employment presents an imminent and serious danger to their health or life has a right to refuse to work. An Employee will be considered to have been unfairly dismissed as a result of removing themselves from a work situation which they reasonably believed presented an imminent and serious danger to life or health.

FAQ 5

How do Employers monitor working remotely?

Employers should have a written policy which governs Employees who are required to work remotely and addresses such things as working hours, productivity, remote meeting protocols etc.

Conclusion

The impact of this crisis is just unraveling and we need to get prepared for some possible outcomes. Employers are encouraged to communicate regularly with Employees and ensure that they are updated as circumstances change. Employees on the other hand should be guided towards reliable sources of information rather than potentially unreliable (or positively unsafe) material on social media.