Mr.
X commenced a lawsuit against Company Y at the National
Industrial Court (NIC), Lagos (Suit No. NIC/LA/265/2015) seeking, inter alia, a
declaration that the termination of his employment by the Respondent on 24th
March 2015 constitutes a violation of his fundamental rights to human dignity
and freedom from discrimination as guaranteed by sections 34 and 42 of the
Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles
2, 5 and 19 of the African Charter on Human and Peoples’ Rights on the ground
that his termination was based on the discovery that he was HIV positive. The
Applicant also sought for general, aggravated and exemplary damages against the
Respondent for the shabby and wrongful manner in which his employment was
terminated.
X commenced a lawsuit against Company Y at the National
Industrial Court (NIC), Lagos (Suit No. NIC/LA/265/2015) seeking, inter alia, a
declaration that the termination of his employment by the Respondent on 24th
March 2015 constitutes a violation of his fundamental rights to human dignity
and freedom from discrimination as guaranteed by sections 34 and 42 of the
Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles
2, 5 and 19 of the African Charter on Human and Peoples’ Rights on the ground
that his termination was based on the discovery that he was HIV positive. The
Applicant also sought for general, aggravated and exemplary damages against the
Respondent for the shabby and wrongful manner in which his employment was
terminated.
The
pertinent facts of the case are as follows: the Applicant contended that the
Respondent had a policy of mandating its employees to undergo HIV tests at
various times of the year and on one of such occasions; he was discovered to be
HIV positive. Upon discovery of the Applicant’s HIV status, his Line Manager
asked him to go home to take care of himself and never return to the office.
The Applicant’s solicitor consequently wrote a letter to the Respondent
requesting it to rescind the termination of the Applicant’s employment and
compensate him, but the Respondent did not respond to the letter.
pertinent facts of the case are as follows: the Applicant contended that the
Respondent had a policy of mandating its employees to undergo HIV tests at
various times of the year and on one of such occasions; he was discovered to be
HIV positive. Upon discovery of the Applicant’s HIV status, his Line Manager
asked him to go home to take care of himself and never return to the office.
The Applicant’s solicitor consequently wrote a letter to the Respondent
requesting it to rescind the termination of the Applicant’s employment and
compensate him, but the Respondent did not respond to the letter.
As
a result of the above, the Applicant filed an Originating Summons and a Written
Address at the NIC through his solicitor, Mr. Faruq Abbas of Abdu-Salaam Abbas
& Co., by which he requested for the reliefs stated above.
a result of the above, the Applicant filed an Originating Summons and a Written
Address at the NIC through his solicitor, Mr. Faruq Abbas of Abdu-Salaam Abbas
& Co., by which he requested for the reliefs stated above.
The
Respondent’s Counsel filed a Written Address in response to the lawsuit where
he argued that the Applicant’s employment was not terminated and that the
Applicant failed to resume at work based on his inability to come to terms with
his HIV status. The Respondent however conceded that the last time it paid the
Applicant’s salary was in March 2015 and it did not make any attempt to visit
the Applicant at his residence. The Respondent’s Counsel raised other arguments
and objections, which includes— challenging the competence of the lawsuit on
the ground that it ought to have been commenced through a writ of summons since
the facts of the case were purportedly disputed.
Respondent’s Counsel filed a Written Address in response to the lawsuit where
he argued that the Applicant’s employment was not terminated and that the
Applicant failed to resume at work based on his inability to come to terms with
his HIV status. The Respondent however conceded that the last time it paid the
Applicant’s salary was in March 2015 and it did not make any attempt to visit
the Applicant at his residence. The Respondent’s Counsel raised other arguments
and objections, which includes— challenging the competence of the lawsuit on
the ground that it ought to have been commenced through a writ of summons since
the facts of the case were purportedly disputed.
Decision
of the National Industrial Court
of the National Industrial Court
In
a judgment which was delivered on 15th July 2016, Honourable Justice
Obaseki-Osagie agreed with the Applicant’s Counsel’s argument that the
Applicant was constructively dismissed from employment and that his dismissal amounted
to a violation of his fundamental right to human dignity and freedom from
discrimination since it was ostensibly premised on his HIV status.
a judgment which was delivered on 15th July 2016, Honourable Justice
Obaseki-Osagie agreed with the Applicant’s Counsel’s argument that the
Applicant was constructively dismissed from employment and that his dismissal amounted
to a violation of his fundamental right to human dignity and freedom from
discrimination since it was ostensibly premised on his HIV status.
The
Court also held that it was unlawful for a Company to mandate its employees to
undergo any form of medical test, as doing so would amount to an invasion of
the employees’ right to privacy and flagrant disobedience of section 10 (6) of
the Protection of Persons Living with HIV and Affected by Aids Law of Lagos
State, 2007. It is instructive to state that the Protection of Persons Living
with HIV and Affected by Aids Law of Lagos State, 2007, makes it an offence for
a company to mandate its employees to undergo any medical or clinical tests.
Court also held that it was unlawful for a Company to mandate its employees to
undergo any form of medical test, as doing so would amount to an invasion of
the employees’ right to privacy and flagrant disobedience of section 10 (6) of
the Protection of Persons Living with HIV and Affected by Aids Law of Lagos
State, 2007. It is instructive to state that the Protection of Persons Living
with HIV and Affected by Aids Law of Lagos State, 2007, makes it an offence for
a company to mandate its employees to undergo any medical or clinical tests.
The
Court therefore awarded general damages in favour of the Applicant for the
violation of his fundamental right to human dignity and freedom from
discrimination (24 months gross salary as general damages and 1 month salary in
lieu of notice).
Court therefore awarded general damages in favour of the Applicant for the
violation of his fundamental right to human dignity and freedom from
discrimination (24 months gross salary as general damages and 1 month salary in
lieu of notice).
Lessons
from the National Industrial Court’s Decision
from the National Industrial Court’s Decision
One
of the major lessons from this decision is that the mere fact that an employer
terminates the employment of an employee without giving any reason for doing so
will not protect the employer from a work place discrimination lawsuit. This is
because the Court will not hesitate to award significant damages against an
employer, where the employee is able to adduce credible evidence showing
that his/her employment was terminated based on a health related condition that
does not in any way affect the employee’s ability to perform his/her roles.
of the major lessons from this decision is that the mere fact that an employer
terminates the employment of an employee without giving any reason for doing so
will not protect the employer from a work place discrimination lawsuit. This is
because the Court will not hesitate to award significant damages against an
employer, where the employee is able to adduce credible evidence showing
that his/her employment was terminated based on a health related condition that
does not in any way affect the employee’s ability to perform his/her roles.
Another
important lesson is that employers must refrain from making it compulsory for
their employees to undergo any form of medical or clinical tests, as this would
be regarded as an invasion of the employees’ right to privacy and a disobedience
of section 10 (6) of the Protection of Persons Living with HIV and Affected by
Aids Law of Lagos State. Therefore, employers must ensure that their health
policy/handbook contains ample provisions, which make it clear that the
employee has a right not to submit to a clinical or medical test and the
failure to submit to such test would not be punished in any manner
whatsoever.
important lesson is that employers must refrain from making it compulsory for
their employees to undergo any form of medical or clinical tests, as this would
be regarded as an invasion of the employees’ right to privacy and a disobedience
of section 10 (6) of the Protection of Persons Living with HIV and Affected by
Aids Law of Lagos State. Therefore, employers must ensure that their health
policy/handbook contains ample provisions, which make it clear that the
employee has a right not to submit to a clinical or medical test and the
failure to submit to such test would not be punished in any manner
whatsoever.
Lastly,
employers in Nigeria must, as a matter of policy, always consult their external
Counsel before taking decisions regarding the termination of an employee’s
employment, as failure to do so might affect the image of the company and
expose it to prosecution for a breach of the Protection of Persons Living with
HIV and Affected by Aids Law of Lagos State and other similar legislations in
Nigeria.
employers in Nigeria must, as a matter of policy, always consult their external
Counsel before taking decisions regarding the termination of an employee’s
employment, as failure to do so might affect the image of the company and
expose it to prosecution for a breach of the Protection of Persons Living with
HIV and Affected by Aids Law of Lagos State and other similar legislations in
Nigeria.
Conclusion
It
is expected that the NIC’s decision would help to stem the tide of work place
discrimination on HIV related grounds in Nigeria, as a significant number of
employees who have been victims of work place discrimination on HIV related
grounds are usually not bold enough to seek redress in the Court.
is expected that the NIC’s decision would help to stem the tide of work place
discrimination on HIV related grounds in Nigeria, as a significant number of
employees who have been victims of work place discrimination on HIV related
grounds are usually not bold enough to seek redress in the Court.
It
should be noted that this article is for general information only. It is not
offered as advice, on any particular matter, whether legal, procedural or
otherwise. If you have any questions about this article, please contact the
author on foa@abdu-salaamabbasandco.com
should be noted that this article is for general information only. It is not
offered as advice, on any particular matter, whether legal, procedural or
otherwise. If you have any questions about this article, please contact the
author on foa@abdu-salaamabbasandco.com
Managing
Partner
Partner
Abdu-Salaam
Abbas & Co.
Abbas & Co.
Legal Practitioner with
core competence in commercial litigation, property law, debt recovery,
alternative dispute resolution and family law. Represents clients regularly in
civil lawsuits in various Courts in Nigeria and advised companies and high net
worth individuals.
core competence in commercial litigation, property law, debt recovery,
alternative dispute resolution and family law. Represents clients regularly in
civil lawsuits in various Courts in Nigeria and advised companies and high net
worth individuals.