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.
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.
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
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.
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.
4 J.A. Babalola v. SSS, supra
5 J.A. Babalola v. SSS, supra
6 Al-Bishak v. National Productivity Centre & anor  LPELR-24659(CA), per Oseji, JCA.
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