6/
19.07.2016
Court Delivers Landmark Judgment on Work Place Discrimination on HIV Status of an Employee
Faruq Abbas
M
r. X commenced a lawsuit against Smiridu Nigeria Limited 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 is 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 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. 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. Decision of the 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. 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. 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). Lessons from the NIC’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 anyway affect the employee’s ability to perform his/her duties. 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 contravenes section 10 (6) of the Protection of Persons Living with HIV and Affected by Aids Law of Lagos State, 2007. 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, 2007 and other similar legislations in Nigeria. Conclusion It is expected that the NIC’s decision will 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. Faruq Abbas, MCIArb is the Managing Partner of Abdu-Salaam Abbas & Co.
Legal Personality of the Week Olayemi Ayanechi
‘For a Lawyer: the Art of Learning is Never Accomplished’ My name is Olayemi Anyanechi. I am the Managing Partner of Sefton Fross, a firm specialised in Energy and Natural Resources as well as Banking and Finance law. I graduated with a Bachelor’s degree in law from the University of Ibadan at the top of my class in 1996 and I obtained a Second Class Upper Division from the Nigerian Law School, Lagos in 1997. I was called to the Nigeria Bar in February, 1998. I started my professional career as a Banker with the Merchant Banking Corporation of Nigeria (now part of First Bank of Nigeria) until 2002; and thereafter went for a Master’s Degree in corporate and commercial law from the University of Cambridge, UK in 2003. I was a Chevening Scholar as well as a Pegasus Scholar of the prestigious Inner Temple of the United Kingdom. I came back from my masters to practice at the law firm of Olaniwun Ajayi. Following that I took up the role of General Counsel at Sahara Energy Resources Limited, one of Nigeria’s leading energy companies. I later joined Templars as a Partner in 2006. I felt the need to push myself to a higher level of professional advancement and started Sefton Fross law firm in 2010. Sefton Fross has gone ahead to win several notable laurels in the short time it has been launched including the ESQ Legal Awards ‘Energy Firm of the Year’ in 2014 and ‘Oil and Gas Firm of the Year’ in 2015. Have you had any challenges in your career as a lawyer and if so what were the main challenges? My main challenge as a lawyer has been refusing to compromise quality standards in an environment that has commoditised specialised services. A lot of Nigerians (and Nigerian companies) see legal services as interchangeable from one provider to the next and the jocular question “wetin laywers dey do sef?” is sometimes quite reflective of the Nigerian perception of legal (and professional) services as a whole. The problem with commoditisation however is that price – and not quality - becomes the major distinguisher of one brand from the next.
Olayemi Ayanechi
This means even reputable law firms have had to lower prices significantly just to continue to meet their overheads. The result being that they assign specialised work to juniors who lack the ability to handle it, which undermines quality. Sefton Fross’ promise is to consistently render top notch legal services and it is a constant challenge to provide the excellent services we offer at the cheapest yet viable rate possible. What was your worst day as a lawyer? This was the day I realised one of my associates had bungled a Client’s perfection of security . Even though I had technically done all I should have done as the Partner in charge, I still considered myself responsible. We did eventually get the matter sorted out, but it was a nightmare for a finance lawyer to realise a loan had gone bad and the security was not in place. The important lesson from this incident for me was to only trust what I see which has helped me to avoid
similar mistakes.
eight years old so law was a credible alternative.
What was your most memorable experience? When a friend called to inform me that Sefton Fross had won the ESQ Nigerian Legal Award for ‘Energy Law Firm of the Year’ in 2014. My lawyers literally forced me to enter for the award because I thought we were too new in the market to win. I was actually in London attending to a matter during the Awards event, so imagine my surprise when my friend called to let me know that Sefton Fross won an Award? It was a very positive moment in my career.
What would your advice be to anyone wanting a career in law? I would tell them being a lawyer is a lot of hard work and getting a law degree is only the beginning. I would advise them to have a thirst for knowledge, to challenge every theory, gratify the curiosity of an inquisitive mind, press to find an answer to every question, innovate the accomplishment of the most basic task. I would advise them to keep an open mind, understand that every person has some wisdom to offer, and to learn something from every adversary that comes their way. Not to leave a negotiating table with the same knowledge they came with. I will encompass this in one statement: “The art of learning is never accomplished”.
Who has been most influential in your life? My work ethics, my ethos, principles, total commitment to my job and unerring punctuality, I got from my father, Mr. Joseph Ade Ojo. Growing up, we were taught that freedom comes with responsibility, and with leadership comes accountability. These principles have guided everything I have done in my life. However, my husband, Onyeka Anyanechi has been the most influential person in my adult life. My husband is my greatest fan and I really would not have gotten where I am today without him. He believes in me 110% and when someone has so much faith in you, it is easy to believe in yourself and face your challenges head-on because you know someone has got your back. Why did you become a lawyer? Deep down I am a mathematician with a natural affinity for the sciences and getting to quod erat demonstrandum is part of me. Studying Chemistry in University however fell short of my expectations, because science laboratories in Nigerian universities in the late 80s – early 90s were not that well equipped anymore. When you take my love for proving theorems, breaking down issues and solving problems, law seemed the next best choice, without facing the challenges of inadequate infrastructure. I had also been involved in public debates since I was about
If you had not become a lawyer, what would you have chosen? I would have become a scientist and a Chemistry Professor. Considering I was a math and science prodigy, this would have been a perfect career for me. I studied Chemistry at the University of Ibadan for two years and transferred to law in my third year. Former school mates and teachers are totally astounded when they hear that I am a lawyer. I would have enjoyed the challenge of contributing to science and developing technologies that alleviate human suffering and save lives. Where do you see yourself in ten years? There are so many things I still want to do, writing being a very significant part. I am currently working on my first book and hope in ten years I would have several titles that add value to law students and legal practitioners towards continuous legal education. I expect that in ten years Sefton Fross would have grown to be one of the largest top tier law firms in Nigeria, with offices in other countries, and that some other equally capable partner would be at the helm of affairs of the firm, thus giving me the opportunity to explore my more academic side.