AN EXAMINATION OF THE DUTY OF CARE OF AN EMPLOYER UNDER NIGERIAN LABOUR LAW

ABSTRACT

The laws regulating employment hold a position of significant importance in any modern society. This stems from the substantial contributions that workers make to national growth and development, as well as to the overall well-being of the country’s citizens. Labour law plays a crucial role in mobilizing the workforce to support national progress. The primary actors in employment relationships are the employer and the employee. Whenever a contractual relationship exists between these parties, the binding contract inherently creates rights and duties that both must observe. These respective rights and duties must be examined entirely within the framework of contract law.

In many civilized countries, including Nigeria, historical developments have shown a structured preference favoring employers over employees in terms of liability. While it is undisputed that employers possess the right to dismiss employees along with other rights, employees also hold rights that they can assert. However, in most cases, due to the ignorance of many employees, the chance to challenge unlawful actions by employers often slips away from them.

This research project has made efforts to identify the problems linked to the provision of care by employers to employees, analyze their causes, and propose solutions in the concluding chapter. There is a pressing need to reform the entire framework as it relates to labour law and practice in Nigeria. The pursuit of industrial harmony requires that parties involved in employment and industrial relations are fully aware of the rights and responsibilities that apply to them. These rights and responsibilities evolve as society itself changes.

The objective of this paper is to highlight and analyze the evolving roles of employers toward employees in order to prevent conflicts in their relationship. The authors found that employment relationships have been influenced by developments in international law as well as national laws. The paper recommends ongoing enlightenment for both employers and employees regarding new labour laws that establish fresh statuses and obligations for the parties involved.

CHAPTER ONE

GENERAL INTRODUCTION

1.0 INTRODUCTION

Under the law, employers bear responsibility for health and safety management. It is an employer’s duty to safeguard the health, safety, and welfare of their employees and any other individuals who may be affected by the operations of their business. Employers are required to take whatever steps are reasonably practicable to fulfill this obligation. This involves ensuring that workers and others are protected from anything that could cause harm, while effectively controlling any risks to health or injury that may emerge in the workplace.

Employers have specific duties under health and safety legislation to assess risks present in the workplace. Risk assessments must be conducted to address all potential sources of harm. Employers must also provide information about the risks in the workplace and the measures in place to protect employees, as well as deliver instruction and training to staff on how to manage those risks.

The primary legislation governing the employment of persons in Nigeria is the Labour Act. Other important laws include the Constitution of the Federal Republic of Nigeria (Promulgation) Act (Chapter C23, Laws of the Federation of Nigeria 2004, as amended) and the National Industrial Court of Nigeria Act 2006, which defines the jurisdiction of the National Industrial Court of Nigeria (NICN). Employment law in Nigeria is not based on a single statute but is instead spread across various pieces of legislation that collectively form the legal framework.

There remains an ongoing debate about whether the Labour Act (LA) applies beyond unskilled and manual workers; nevertheless, it continues to serve as the principal law for labour issues. Nigerian law upholds freedom of contract, allowing employers and employees to be bound by their agreements. However, parties must also observe various statutory provisions when entering contracts; for example, laws concerning pensions and taxation fall outside the scope of contractual freedom.

The law and practice surrounding the termination of employment contracts in Nigeria tend to favor employers. An employer may terminate an employee’s contract for bad reasons or for no reason whatsoever. This approach contrasts sharply with the law and practice in many other parts of the world. The difference arises because several countries have moved away from the traditional common law position that permitted employers to end employment contracts for bad reasons or no reason at all.

This shift began with the International Labour Organization through the adoption of the ILO Termination of Employment Recommendation and ILO Termination of Employment Convention 158 of 1982. Approximately 36 countries have ratified the Convention, while around 55 countries both ratifying and non-ratifying have adopted the standards outlined in its articles regarding unfair dismissal. Despite the International Labour Organization’s efforts to promote fair dismissal policies, Nigeria continues to adhere fully to the common law principle of termination at the employer’s will.

Nigeria’s failure to embrace this important convention on ILO standards for unfair dismissal is largely due to the provisions in the Constitution of the Federal Republic of Nigeria 1999 (as amended), which require treaties and conventions to be ratified and domesticated before they can be enforced domestically. The non-application of this convention has left Nigeria with practices that are considered unfair from a global standpoint.

This research work evaluates the law and practice in Nigeria concerning the determination of employment contracts. It examines situations involving termination and dismissal in the Nigerian context.

1.1 BACKGROUND OF STUDY

A contract of employment is a specific type of contract and is therefore governed by the general principles of contract law. As a form of simple contract, it requires consensus ad idem and must satisfy all the essential elements of a valid contract. Vitiating factors that apply to general contracts also apply to employment contracts.

What sets a contract of

employment apart from a simple contract which Chitty defines as a promise or set of promises that the law will enforce is the degree of control that one party exercises over the other party. Furthermore, a contract of employment concerns a relationship between two or more persons where one is employed by the other to perform services. In contrast, a general contract covers relationships between parties in any type of transaction.

This paper seeks to examine the duty of care owed by an employer under Nigerian Labour Law. Its objectives include: providing a contextual background to the contractual relationship between employers and employees in Nigeria; analyzing the legal basis and provisions for employee benefits and the employer’s duty of care; and offering viable recommendations for Nigeria.

1.2 OBJECTIVES OF STUDY

The objectives of this study are:

a. To enhance readers’ understanding of the concept of labour law;

b. To conduct a comprehensive and critical appraisal of the duty of care of an employer under Nigerian Labour Law, with a view to examining its practical application and associated problems, and to recommend appropriate solutions to the identified challenges in its implementation.

1.3 METHODOLOGY

Materials for this study were drawn from both primary and secondary sources. Primary sources include the Constitution of the Federal Republic of Nigeria, other relevant statutory enactments, and case law. Secondary sources consist of textbooks, articles from scholarly journals, internet resources, and other pertinent materials that strengthen the study’s credibility. Consequently, the research is fundamentally a library-based (doctrinal) study.

1.4 LITERATURE REVIEW

Employers engage individuals either under contracts of service or contracts for services. Only a person engaged under a contract of service qualifies as an employee and therefore receives the full protection of employment legislation. An independent contractor or self-employed person operates under a contract for services with the party engaging their work. The distinction between a contract of service and a contract for services can sometimes be ambiguous, but the nature of the contract carries significant implications for both parties regarding employment protection legislation, taxation, and social welfare.

The common law, from which Nigeria derived parts of its legal system, has long imposed a duty on employers to ensure that employees working alongside them in the same undertaking do not suffer injury. This duty arises either from the employer’s personal negligence or from a failure to adequately supervise and control the operations in which both the employer and employees are engaged. An employee has a right of action in cases of breach of this duty that results in personal injury.

At common law, an employer has always been liable for their own personal negligence. An employer who personally participates in the work is responsible for negligence toward an employee in the same way as toward any stranger. Where the employer is a partnership, the negligence of one partner is treated as the negligence of the employer.

To prevent contracting out of

liability, the doctrine of common employment originally provided that if the person causing the injury and the person suffering it were fellow employees engaged in the same employment under the same employer, and the employer had exercised reasonable care in selecting competent servants, the employer would not be liable at common law for the injury. This doctrine was later modified by English statute in 1990. For causes of action arising on or after 5th July 1992, the doctrine no longer applies.

Any provision in a contract of service or apprenticeship that seeks to exclude or limit the employer’s liability for personal injuries caused by the negligence of persons in common employment is void. As a result, the right of an employee to recover damages from the employer for faults caused by fellow employees which existed before the doctrine of common employment has regained force.

The duty of care owed by one worker to another when both are involved in a common operation remains in effect, even if the operation is inherently dangerous and contrary to the policies of the employing institution.

At common law, it is implied in the employment contract that an employee accepts the risks incidental to the job. An employee cannot demand compensation from the employer solely based on the employer-employee relationship for injuries sustained while performing duties, except under a special contract. Claims arising from the dangerous nature of the work, machinery breakdown, or negligence of third parties will generally not succeed.

The employer does not guarantee the employee’s safety in the working environment and does not act as an insurer of the employee’s safety. Employees are expected to exercise due care and skill in their work. Additionally, the employer does not owe a general duty to safeguard the employee’s personal property only their person. However, where the employer’s breach of duty creates imminent peril for the employee, the same duty extends to persons who reasonably attempt to rescue the employee.