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Workplace discrimination can be exhibited directly or indirectly in different forms based on age, sex, disability, and a host of other factors[i]. The impact of such discriminatory acts is never pleasurable and can make the workplace less conducive to work. These discriminatory acts can involve an employer and employee (s), or be between employees.[ii] In Nigeria, every citizen is guaranteed the right to freedom from all forms of discrimination.[iii] Consequently, where there is a breach of this right, there is a remedy available to the aggrieved person(s). The most common avenue available to aggrieved persons to enforce their rights (including discrimination rights) in an employment relationship is by instituting an action in the National Industrial Court (“NIC”).
NIC is the court vested with original exclusive jurisdiction in respect of all labor and employment matters in Nigeria[iv]. The NIC (Civil Procedures) Rules 2017 provides that where a Claimant alleges workplace discrimination, such Claimant shall state the grounds of the alleged workplace discrimination including grounds of ancestry, religion, gender, marital status, and family situation, amongst others. It is instructive that when these claims are initiated by employees, employers are able to settle claims at any time before or after they are initiated until the final judgment of the court is delivered.[v]
The Federal Ministry of Labour and Employment plays a significant role in the protection of the rights of workers in the workplace, and once there are unfair labor practices, they also welcome reports and complaints.[vi]
A. Critical consideration for an employee in workplace discrimination complaints
Before an employee takes the decision to institute an action in court, there are practical steps to take to address workplace discrimination. They are as follows[vii]:
The first step is always to speak to the person about the issue, or at least attempt to speak to the person. In some instances, they might not know what they are doing is wrong or has such a negative discriminatory impact. It is advised that an aggrieved person inform the person about the issues he or she has with their conduct and that if it continues, he or she will have no choice but to report it. In some cases, this will stop it, however, if this doesn’t then you have at least put the person on notice. You should only confront the person if you feel it is safe to do so. It is also best to have some evidence of this engagement. This can be through email correspondence informing the “aggressor” or inviting the ’aggressor’ to a meeting.
If the person refuses to stop after the confrontation, then the aggrieved person needs to begin to build a case by gathering evidence. This is because there is a need to be able to back up any allegation made when a report is made. It is advised that as much detailed evidence as possible is collected. Possible witnesses or persons who are aware of the discriminatory act should also be noted. Apart from documenting the actions, one will also need to be able to prove the negative effect of the discrimination – on one’s physical and mental health, and job performance, amongst others.
It is also important to make copies of any work performance evaluations or letters of commendation you receive from your supervisors. In some unfortunate cases once the issue is reported, the employee begins to be victimized by the supervisors/employers and a common allegation they use to cover this victimization is incompetence’. You need to be able to prove that you are a competent worker, and any victimization that you are faced with e.g., transfer, demotion, or even dismissal on the flimsy excuse of poor performance is actually as a result of your complaint.
Depending on the policy of the workplace, a detailed and comprehensive report of the discriminatory act can be done.
Read also; The scope of the duty of confidentiality in the workplace
B. Critical Considerations for an Employer(s) in workplace discrimination complaints
On the part of employers, it is also advisable to create a workplace where discrimination does not thrive and can be effectively monitored, managed, and prevented. To control the menace of discrimination, employers must develop an effective workplace policy on discrimination. The policy should clearly indicate acts that constitute discrimination, provide a mechanism for employees to report such actions, the procedure for investigating any allegations, and the consequences of breaching the provisions of the policy. In addition, it is recommended that regular training on this topic be conducted periodically for all employees as well.[viii]
An employer who became aware of a workplace sexual harassment incident and took no administrative decision to investigate and address it, such employer may be liable for breaching its duty of care owed to the employee.[ix] Considering the foregoing, employers are advised to develop a workplace policy on harassment and victimization of any form. This policy should provide a mechanism for employees to report such actions, the procedure for investigating any such allegations, and the consequences of breaching the policy.[x]
As most discrimination claims are instituted within the context of wrongful termination of employment claims, an employer may be able to defend itself by proving that the termination of the employee’s contract was carried out in accordance with the terms of his/her employment contract and any applicable law.[xi]
In Summary, some effective steps to control discrimination in the workplace include the following[xii]:
Conclusion
The rising rate of workplace discrimination is disturbing. Employers and employees alike must be deliberate and take active steps to control the same. Where redress is to be sought in court, it is advised that an experienced legal practitioner be employed to assess the matter, institute the action, or defend the action accordingly.
[i] Colour, HIV status, place of birth, religion, pregnancy, sexual orientation, amongst others.
[ii] It is very rare to have discrimination arise from the employee to the employer.
[iii] Section 42 of the Constitution of the Federal Republic of Nigeria.
[iv]Section 7 of the National Industrial Court Act, 2006, and Section 254 (1) (C) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Amendment Act, 2010
[v] https://iclg.com/practice-areas/employment-and-labour-laws-and-regulations/nigeria accessed on 24/10/2023
[vi] https://lawpadi.com/complain-employer-nigeria/ accessed on 24/10/2023
[vii] https://lawpadi.com/complain-employer-nigeria/ accessed on 24/10/2023
[viii] https://iclg.com/practice-areas/employment-and-labour-laws-and-regulations/nigeria accessed on 24/10/2023
[ix] . In Ejike Maduka v Microsoft & ors (2014) 41 NLLR (Pt 125) 67, the court held that an employer was liable for the acts of harassment against the employee where the employer failed to conclude investigations of the alleged case of sexual harassment. Furthermore, Dorothy Adaeze Awogu v TFG Real Estate Limited (unreported decision of NIC in Suit No NICN/LA/262/2013 decided on 4 June 2018), the NIC awarded N2,500,000 damages against an employer for physical harassment and discrimination of the employee at work.
[x] https://www.globallegalinsights.com/practice-areas/employment-and-labour-laws-and-regulations/nigeria accessed on 26/10/2023
[xi] Supra note 5
[xii] https://www.healthandsafetyhandbook.com.au/bulletin/8-ways-to-prevent-discrimination-in-your-workplace/ accessed on 26/10/2023
Written by Deborah Onafadeji for The Trusted Advisors
Email us: info@cms.trustedadvisorslaw.com