As a result of the Covid-19 pandemic, several issues have arisen in relation to rights and options available to employers and employees in the workplace. These issues and options are herein considered in view of the Nigerian Labour Act but are subject to the terms of relevant employment agreements.
Option to lay off employees
- Redundancy: Based on Section 20 of the Labour Act, an employer has the right to terminate an employment agreement where he has excess staff than he can afford to cater for on grounds of redundancy. In laying off employees, the employer is to adopt the principle of “last in, first out” subject to all factors of relative merit, including skill, ability and reliability. There is, however, no provision for payment of redundancy allowances to employees in the Act and the Minister is yet to make any regulation in that regard as stipulated by the Act.
- Termination by Notice: One of the terms contained in an employment agreement is the termination clause which should specify the length of notice in the event of termination. The employer may choose to terminate the contract of employment by notice of termination according to the terms of the agreement. Where no notice is provided, the employer is to issue notices in accordance with Section 9(7)(c) of the Labour Act which states that notice shall be one day for a contract that has continued less than three months, one week for a contract that has continued less than two years, two weeks for a contract that has continued less than five years and one month for a contract that has continued more than five years.
Option to Retain Employees
- Retaining staff: Where the employer chooses to retain his staff, he has a duty to provide work on every day that the employee presents himself as fit for work, except rest days and public holidays (Section 17 of the Labour Act). Where the employer is unable to provide work as a result of circumstances beyond the control such as a pandemic, he will only be liable to those wages only on the first day of the period in question.
- Suspending obligations by reliance on Frustration or force majeure: The doctrine of frustration is applicable where something happens in the course of the employment which makes it impossible for the contract to be performed. An employer may choose to rely on the doctrine of frustration to suspend the obligations of the parties under the agreement and resume obligations after the period of the pandemic.
- Varying the employment agreement: An employer in the light of the pandemic may vary the contract agreement between the parties. Such terms must however be agreed to by the parties. Such variance of the agreement may be as to reduction in wages for the period of the pandemic, establishing work from home for employees etc.
- Right of an employee in self-isolation or sick employee
An employee who is ill or is self-isolating as directed is in accordance with Section 16 of the Labour Act, only entitled to be paid wages up to twelve working days in any one calendar year during absence from work caused by such temporary illness.
Employee’s Right to Privacy
Information regarding medical information of an employee, such as whether the employee is suffering symptoms of coronavirus or has been diagnosed as having the virus are personal data under the Nigerian Data Protection Regulation and must be protected to avoid penalty for breach of the employee’s privacy rights.
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