Nigeria: Can I Terminate For A Tattoo?

Last Updated: 15 August 2018
Article by Perchstone & Graeys

 Striking a balance between the personal liberties of the employee and the inherent right of the employer to protect his commercial interest by contractually regulating the behavioural conduct of the employee is a topical issue globally. A continuous is the ability to determine the extent to which the employer can validly encroach into the privacy of the employee or subject the employee to uncompromising rules on dressing and grooming, in a bid to protect his business interests.

The National Industrial Court of Nigeria (NICN) was recently confronted with the task of locating this balance, on the back of a case brought before it whereby an employee was disengaged for having a tattoo.

JOSHUA ABIODUN BABALOLA V. STATE SECURITY SERVICE1

Mr. Babalola was employed by the Department for State Security Service (SSS) as a Security Intelligence Officer Two (SIOII). By the terms of his employment, Mr. Babalola was to be on probation for two years. Six months into his employment, he, alongside some other officers, were instructed to proceed on an officers training course. Whilst on the course, to Mr. Babalola's dismay, his contract of employment was terminated. It was on the back of this termination that the parties appeared before the NICN.

Mr. Babalola (who brought the case before the NICN) contended that the termination of his employment was vindictive and ill-motivated by the fact that his father stood against injustice in the force as its former Director. The SSS however stated that Mr. Babalola was given a provisional appointment, subject to confirmation after two years; Mr. Babalola was employed on June 16, 2014 and his employment terminated on October 5, 2015. It also stated that the employment of Mr. Babalola was irregular as it was done through the influence of his father. A further issue raised by the SSS was the tattoo found on Mr. Babalola's body which, according to it, was against the SSS' code of service and evidenced indiscipline which was not condoned by the SSS.

Mr. Babalola explained to the court that he was never heard on any of the issues being raised by the SSS.

The NICN, in reaching its judgment, noted that an employee on probation does not enjoy all the rights enjoyed by a confirmed employee. The SSS had however condoned the appointment of Mr. Babalola for the period that he was in its employ and could therefore not terminate him on the back of the alleged influence of his father.

It further held that the termination of Mr. Babalola could not be justified by the tattoo on his skin, as neither the Public Service Rules nor the Rules of the National Security Organisation had provisions regulating dressing and outward appearance; nor did the SSS prove that Mr. Babalola's tattoo impacted negatively on his work. Having not had any internal regulation outlawing tattoos in the workplace, the SSS could not sustain the dismissal.

COMMENTS

A number of issues where enumerated by the court from this single judgment.

The matter of the Tattoo

In an article Tattoo-ism: Where Body Art Meets Employment Discrimination2, the author G.D. Kennedy remarks:

More of a concern for employers, however, is that visible body art is increasing as well. This trend may be at odds with the image that an employer wishes to convey to its clients and customers, particularly given the negative stereotypes associated with body art: studies reflect negative biases against individuals with tattoos which include assumptions that they are less intelligent and attractive, and more rebellious.3

In understanding the employer's need to protect its business interest, the NICN has stated that having a tattoo is not an act expressly forbidden and as such, must be construed as being permitted in order not to curtail fundamental freedoms. As such, an employer cannot rightly base the termination of an employee's contract on bodily tattoos.

Whilst it is noted that an employer is at liberty to set dress codes and standards of dressing/appearance for employees (e.g. via the company Handbook), the NICN expressly notes that it will amount to a form of workplace discrimination where such rules do not expressly exist to, in this case, base the termination of an employment on such a criteria. In reaching this conclusion, the court examined the exhibits and the Public Service Rules in the Babalola case; neither of the documents made a reference to tattoos. This led to the inquiry: how could the tattoos have amounted to improper dressing or discourteous behaviour? More so, when the tattoos were concealed underneath Mr. Babalola's clothing, and could therefore not amount to an eyesore by any stretch of the imagination; generally, employers are unlikely to frown at concealed tattoos but the unconcealed ones generally pose problems.4

Laudably, the test(s) for determining the validity or otherwise of employee body art, as gleaned from Babalola's case, benchmarks the global practice. Thus, ultimately, the validity or otherwise of body art would be determined by the employer's policy as regards body art as defined in the employee handbook/policy document5.

ILO Instruments

It is known that Section 7 of the NIC Act 2006 and section 254C (1) (f) and (h) and (2) of the 1999 Constitution empowers the NICN to apply international best practices in adjudicating matters. However, when section 7(6) of the NIC Act 2006 declares that what amounts to good or international best practice in labour or industrial relations is a question of fact, it implies that such a practice is not already codified in the conditions of service and would thus require to be pleaded and proved by the party alleging their existence.

It is thus no surprise that the NICN, in this case, reemphasised that while it can rely on ILO instruments as setting out international best practices, this application is not automatic. In so far as such international conventions have not been ratified, the ILO instruments must be expressly pleaded by the party seeking to rely on same for the court to be able to rely on same.

The status of an employee on probation

The NICN defined the term "provisional" to mean "temporary, preliminary and tentative, provided for a present service or temporary necessity, adopted tentatively". As such, an employee still on probation maintains a status that is viewed more as "tentative", until the employee is confirmed. On probation, the employee does not enjoy the same conditions of service as a confirmed employee. His/her status is more or less temporary and as such, the process of his removal is not subjected to the strict adherence enjoyed by a confirmed employee.6

CONCLUSION

While it is within the competence of the employer to make rules that regulate the dressing and outward appearance of employees, where there are no rules or workplace ethics prescribing same, the employer cannot proceed to terminate the employment of an employee on that ground. Therefore, employers who do not wish to condone body art should expressly state terms prohibiting same in their company handbook/policy document, in the absence of which there would be constraint, enforceable by the court, as to the extent to which any restrictions can be imposed. Rules and ethics that guide a contract of employment must thus be clearly stated, as against being left to conjecture.

Footnotes

 1 Unreported Suit No. NICN/LA/605/2015 which judgment was delivered on July 10, 2017.

2 G.D. Kennedy, "Tattoo-ism: Where Body Art Meets Employment Discrimination", accessed at: https://www.labordish.com/2015/06/tattoo-ism-where-body-art-meets-employment-discrimination/ on 17/07/2017.

3 Ibid.

4 J.A. Babalola v. SSS, supra

5 J.A. Babalola v. SSS, supra

6 Al-Bishak v. National Productivity Centre & anor [2015] LPELR-24659(CA), per Oseji, JCA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions