The year 2020 has indeed been a remarkable one in many ways. While a handful of people may have experienced personal highs, the general public continues to grapple with the ongoing effect of the coronavirus pandemic.
Apart from the monumental loss of revenue to many business organisations, individuals across the globe are also taking hit after hit in their careers as their employers struggle to counter the financial loss occasioned by the pandemic.
This virus, which spreads by close human interaction, has propelled many organisations to rise to the challenge of safeguarding business continuity by adopting innovative tactics they may not have considered before. Employers are now having to restructure their employment landscape to suit current realities occasioned by the far-reaching effect the pandemic continues to have on major facets in the world of work.
The health and safety of employees in the workplace remains of paramount importance; over the years, the International Labour Organization (ILO) has upheld a number of international labour standards aimed at promoting decent and productive work conditions for employees. These ILO standards have proven to be useful guidelines in the framework of an employer’s crisis response to the covid-19 outbreak. The ILO’s Occupational Safety and Health (OSH) Convention, 1981 (Convention No. 155) (ratified by Nigeria in May 1994) aims to prevent accidents and injury to health arising out of, linked with or occurring in the course of work, by minimising, so far as is reasonably practicable, the causes of hazards inherent in the working environment.
Bringing it home, cases such as Onifade Oluwatoyin v IBDC Plc (unreported, suit no: NICN/AB/08/2015) and Friday Godwin v Anthony Rocks Limited (unreported, suit no: NICN/AK/46/2014) decided by the National Industrial Court of Nigeria (NICN) have championed the duty imposed on employers to provide conducive work environments. These decisions are hinged on long-standing statutes/policies such as the Factories Act 1990, Section 7 of the Employee’s Compensation Act 2010 and clause 5.3 of the National Policy on Occupational Safety and Health, which collectively impose a duty of care on all employers to provide a safe working environment for their employees – failing which, the employer will be liable to compensate employees who have suffered from occupational diseases or sustained injuries from accident at the workplace or in the course of employment.
A viral disease/infection such as covid-19, if contracted at work or during the course of work, may thus be considered an occupational disease and as such, bearing these health considerations, employers have an obligation to remove their employees from work conditions they believe pose a risk to the life and health of their staff.
For those categories of employees whose roles require them to be physically present at work, it has become necessary for their employers to implement proactive measures to prevent transmission of the virus in the workplace. Depending on the level of risk exposure to the virus at work, employers in Nigeria will have to seriously consider the provision of gloves, face masks/shields, overalls, sanitisers, respiratory protection, etc, when appropriate. Beyond these items of personal protective equipment (PPE), employers also bear the responsibility of enforcing limited access to the office, ensuring routine cleaning and disinfection of office equipment, and providing OSH training and information to staff.
In view of the unlikely possibility of completely eliminating the health risk associated with physical working at this time, many employers have quickly taken to remote working across the globe, including in Nigeria. Admittedly, due to the peculiar terrain in Nigeria (especially as regards limited technology/network connectivity), many Nigerian employers were unprepared for the transition to remote working. As a result, there are a number of lingering issues that employers in Nigeria are struggling to resolve in order to navigate the new normal; that is, remote working.
Major issues arising from remote working include managing confidential and sensitive data generated in connection with work, but outside the four walls of the office. In Nigeria, employers must remain abreast of existing local and applicable international data privacy regulations and attendant sanctions. This has led to a surge in enquiries from employers as regards their expected legal obligations in handling and transmitting confidential data manufactured or connected with their virtual world of work.
Monitoring the activities of employees who are now scattered across different states in Nigeria, and whose physical presence is no longer required within the four walls of the office building, has also taken a toll in respect of how employers are able to evaluate staff performance during the covid-19 era. In climates such as Nigeria, where the physical presence of employees at work has been a predominant feature of business and industry for decades, many employers have erroneously fallen into the trap of assuming that remote working amounts to less productivity. However, faced with little or no option than to maintain social distancing through remote working, we observe a rise in the use of software applications by Nigerian employers to assist in monitoring staff activities and evaluating staff productivity.
As employees adjust to the reality of covid-19, employers are again concerned that their employees may take the remote-working system for granted and under-perform in the diligent execution of their contractual responsibilities. In these circumstances, employers are faced with the difficulty of disciplining erring staff who work remotely. Notwithstanding the peculiar dynamics of work in the covid-19 era, employers must continue to uphold the principles of fair hearing as expounded by the NICN in Titilayo Akinsanya v Coca-Cola (unreported Suit No: NICN/LA/40/2012), and afford their employees (whether working remotely or otherwise) the opportunity to defend themselves against alleged misconduct. Employers in Nigeria must also be practical and recognise the inherent limitations associated with remote working in Nigeria. Factors such as limited internet connectivity and power supply may affect the productivity of an employee, and the same should be considered before the employer reaches a decision as to an employee’s productivity.
Depending on the terms and nature of the employment, employers in Nigeria may have to take up the responsibility for providing all the tools necessary for effective remote working, including laptops, speedy internet connectivity/data allowance, etc. In the alternative, employers may need to implement a system whereby the employee is at liberty to use their personal gadgets to carry out their duties, albeit with the risk that the confidential data of clients may
remain on the personal devices of remote employees.
While a better work-life balance from remote working seems to be a positive offshoot of the pandemic (at least in the case of employees), this may not always be the case and may in fact be a myth. Research has revealed that the crisis is putting new levels of stress on remote workers, especially those who are striving to balance working from home with family needs, eg, childcare. In addition the number of hours workers put in has risen, as it is easier for employers to instruct employees round the clock and beyond stipulated office hours/working days. These remain issues that employers need to wary of, so that they are not found to be contravening the terms agreed in the contract of employment (including acceptable working hours).
There has been an unprecedented reduction in economic activity, caused by social distancing restrictions imposed by various governments to curb the spread of the coronavirus.
Due to the slow economic activity and an inability to execute outstanding contracts, employers have had to adapt cost-cutting economic measures to stay afloat financially while trying to preserve the jobs of their staff. Despite the protracted effort of businesses to meet their contractual obligations to staff, it appears that lay-offs, pay cuts and furloughing are inevitable to survive these times. The pandemic has eaten deep into the pockets of small and large companies alike, such that pay cuts as high as 60 per cent are being imposed.
As an alternative to making redundancies, Nigerian companies have considered placing their staff on compulsory temporary leave of absence (furlough). During furlough, employers are able to retain staff while either choosing to reduce the number of hours the staff member is scheduled to work (in return for less pay) or impose a zero-work-hour policy (in return for no pay).
Compared to lay-offs, furloughing has the benefit of retaining the employment of staff who, although no longer collecting a monthly salary, remains entitled to employment benefits such as health and life insurance. Depending on the jurisdiction, a furloughed employee may also qualify for unemployment benefits. Other options available to employers to avoid depleting their financial resources include: unpaid leave; replacing holiday entitlement with time off for the duration of the lockdown; deferring on payment of bonuses/salary/promotions; and so on.
Prior to implementing any of these proposed measures, businesses must take into account existing legal requirements. Generally, the NICN considers it unfair labour practice for an employer to unilaterally alter the terms of an employment, especially where such alteration purports to take away an employee’s benefit. Taking this into account, and to avoid a litany of post-covid-19 cases from disgruntled employees, it is in an employer’s best interest to properly discuss and negotiate the proposed amendments prior to their application. These measures must also be in line with the guidelines provided in the staff handbook in respect of the relevant issues.