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03 April 2019
It is clear from the #metoo #hertoo and #timesup campaigns – as well as the numerous allegations of sexual harassment levied against perceived industry leaders, including a professor at a Nigerian university – that combating sexual harassment is a global concern. Thankfully, it seems that such conduct will no longer be condoned, considered tenable or swept swiftly and easily under the corporate carpet.
Sexual harassment and workplace assault have serious implications for victims, including:
This article examines the protection of employees' rights in the workplace under Nigerian law.
Employees' rights in the workplace include:
Employees also have a right not to be sexually harassed or assaulted in the workplace. Such conduct includes:
A good starting point for a discussion on the Nigerian legal framework for workplace sexual harassment is the legal protection provided for individuals in:
Employees Compensation Act
Nigerian laws on workplace sexual harassment are arguably inadequate. Few provisions deal explicitly with sexual harassment, which must be remedied if this issue is going to be curbed. Surprisingly, there is no explicit provision in the Labour Act 2004 that prohibits sexual harassment or any other kind of harassment during employment. The closest provision in this regard is Section 9 of the Employees Compensation Act 2010, which provides for compensation in the event of mental stress caused as a result of a sudden and unexpected traumatic event which arises during employment.
Although the Labour Act is silent on workplace sexual harassment – which has no doubt left many victims unsure of their available legal options – it would be incorrect to assert that no protection is afforded to employees under Nigerian law. Section 34 of the Constitution protects the dignity of individuals at all times, including while in the workplace. In the event of a breach of this constitutional right, an aggrieved person can seek remedies in a court of competent jurisdiction.
The right of individuals to protection from sexual harassment and to work with dignity are also human rights universally recognised by various international conventions, some of which have been domesticated in Nigeria. Thus, it follows that every individual has the right to practise any profession or carry out any lawful occupation, trade or business in a safe environment free from sexual harassment.
The National Industrial Court (NIC) addressed the void in the labour statutes regarding workplace sexual harassment in its Civil Procedure Rules 2017. Under Order 14, Rules 1(a) to (d), the following acts constitute 'workplace sexual harassment' in Nigeria:
Thus, an employee's claim of sexual harassment in the workplace is likely to succeed where any of the following can be established:
In addition, Order 14 of the new rules sets out that the following acts, among others, qualify as workplace sexual harassment:
Victims of the above conduct can file an action before the NIC seeking, among other things, monetary compensation, damages and an injunction.
The NIC's creativity in drafting Order 14 can be better appreciated when understood in the context of its innovative efforts to ensure that Nigerian labour law aligns with international best practices. That said, Order 14 is not necessarily a codification of the law on workplace sexual harassment, as this matter has always been actionable before the courts. However, it is helpful, as it:
Criminal Law of Lagos State
Lagos state had taken steps to advance the jurisprudence on workplace sexual harassment in Nigeria by enacting the Criminal Law of Lagos State. The law prohibits harassment that:
In addition, any person who sexually harasses another person in Lagos is guilty of a crime and will be liable to three years' imprisonment.
For further information on this topic please contact Adekunle Obebe, Joseph Onele or Ozioma Agu at Bloomfield Law by telephone (+234 1 454 2130) or email (email@example.com, firstname.lastname@example.org or email@example.com). The Bloomfield Law website can be accessed at www.bloomfield-law.com.
(1) Wesley Newcomb Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1913) Yale Law Journal, Vol 23, p16; Hohfeld, "Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1917) Yale Law Journal, Vol 26, p710; Arthur L Corbin, "Rights and Duties" (1924) Yale Law Journal, Vol 1(1), pp501-527; David Lyons Noûs, "The Correlativity of Rights and Duties" (1970) Wiley, Vol 4(1), pp45-55; and Jack Donnelly, "How are rights and duties correlative?" (1982) The Journal of Value Inquiry, Vol 16(4), pp287–294.
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