LEGAL ISSUES ASSOCIATED WITH RECRUITMENT IN NIGERIA.1
Recruitment is a necessary part of any organisation's expansion efforts. Businesses rely on the recruitment and selection of talents for their overall success. Given the parties and aspects involved in the process of identifying, sourcing, screening, and interviewing candidates for jobs within an organisation, it is important to examine the legal and ethical considerations around the recruitment process.2 Whether as an employer looking to fill vacancies or an applicant seeking employment, there is a need to be aware of the legalities involved in the hiring process.
Before and during the hiring process, prospective employees enjoy many legal rights, whether they are eventually hired3 or not. Employers must respect, protect, and uphold these rights at every stage of the recruitment process, from placing a job advert to pre-employment screening to the final selection of the candidate to be hired.4 Although there are no specific laws touching on pre-employment rights, the Nigerian legal regime affords basic protections to prospective employees. This paper examines the legal issues around employee recruitment, particularly as it concerns the rights of job seekers.
2. Freedom from Discrimination
As far as legal issues related to recruitment and hiring are concerned, discrimination is one of the greatest concerns. Ethical hiring dictates that candidates are treated fairly and assessed without discrimination. Section 42 of the 1999 Constitution of Nigeria (as amended) guarantees the right to freedom from discrimination and prohibits direct and indirect discrimination on the grounds of place of origin, sex, disability, religion, status, political opinion, ethnic association, or any other demographically derived disparity. Simply put, employers are legally prohibited from considering factors such as race, ethnicity, religion, gender, or nationality to screen applicants or make hiring decisions.5
The wording of the job posting should neither give preference to a particular gender, race, colour, religion, sexual orientation or political belief nor require unreasonably high, restrictive, or irrelevant standards. The aim is to promote equal opportunity for all regardless of status, condition or circumstance, especially pregnant women, sickle cell carriers, and persons living with HIV or other non-communicable diseases.6 While there are laws against prioritising race and ethnicity in recruitment, several organisations do so to maintain progressive levels of diversity in the workplace or for other legitimate business purposes.
In exceptional circumstances, an employer, organisation, or employment agency may make hiring decisions based on certain factors. However, it is crucial to show proof that the preferred trait is a bona fide occupational requirement or that the company's core business operation requires such selective hiring practices.
In cases of physical impairment, the employer is required to provide reasonable accommodation for applicants' disabilities, provided these accommodations do not create undue hardship/significant difficulty for the business or unaffordable expenses for the employer.7 The Discrimination Against Persons with Disabilities (Prohibition) Act, 20188 prohibits discrimination on the basis of disability and imposes sanctions including fines and prison sentences for contravention.9 People with disabilities have the right to equal consideration for employment opportunities.10 Unless it can be proved that such disability would hinder the effective performance of the duties required for the advertised role, organisations and principal officers in contravention are liable to a minimum fine of N500,000 and N50,000 respectively.
Despite all the issues considered above, there are not many hiring lawsuits filed – and even fewer are won, for discrimination in the recruitment process.11 There are a few reasons for this, the major one being lack of proof. In the absence of concrete evidence, it is difficult to know, and harder to prove why an employer turned down a particular applicant. Often, an applicant is left with compelling facts but no substantial evidence, particularly if the applicant doesn't have any personal contact within the company. As a result, applicants who believe they were passed over unfairly do not seek legal redress. However, few cases have been recorded of successful claims by victims of discriminatory hiring practices. For example, an investigation led by the United States Labor Department into Bank of America's hiring practices revealed that the company used "unfair and inconsistent selection criteria" to prevent qualified black candidates from being hired.12 In 2013, the bank was ordered to pay USD$2,180,000 to 1,147 African American job applicants rejected in 1993 and from 2002 to 2005.
In the same year, the proprietors of Framboise Patisserie, a bakery in Queens, New York, were fined USD$25,000 by the Human Right Commission for discriminatory hiring practices. The co-owner, Patty Meimetea while interviewing Ms. DaCosta, for the counter-girl position advertised on CraigsList, mentioned that she wouldn't be a good fit for the position because "black workers in the front of the store would scare away customers." It was also discovered that the advert discouraged men from applying for the job by describing the position with gender-specific language.13
3. Fair Treatment
Job applicants must not be subjected to degrading and inhumane treatment during the recruitment/selection process. Before the acceptance of the offer, candidates cannot be compelled to work (or subjected to any form of undue influence) as this amounts to servitude. No recruitment fees or related costs should be charged to, or otherwise borne by job seekers.14 Employers must ensure that the laws relating to the employment of children and young people are complied with when recruiting minors.15
It is important to note that many hiring practices that are considered unfair may not be unlawful under local labour legislation. Thus, as part of global efforts to ensure that recruitment takes place in a way that respects, protects and upholds basic human rights, the International Labour Organisation established the General Principles and Operational Guidelines for Fair Recruitment 2016 ("Guidelines for Fair Recruitment"). These non-binding guidelines provide a comprehensive approach to realising fair recruitment, whether directly by employers or through intermediaries.
4. Data Privacy and Protection
Recruitment relies heavily on the collection, retention, and distribution of personal data of job applicants which raises the issue of data privacy and protection. Prior to the enactment of the Nigerian Data Protection Regulation 2019 ("NDPR" or "the Regulation"), data privacy rights were protected under Section 37 of the Nigerian Constitution. Under the NDPR, organisations collecting, and processing personal data must ensure that its intended use complies with regulatory requirements.16 By the NDPR, candidates are regarded as data subjects because their application documents contain personally identifiable information. Thus, employers or recruiting agents are "Data Controllers" with full responsibility for ensuring the protection and lawful retention/use of applicants' information. They owe a duty of care to the candidates and will be liable for their acts and omissions in relation to the processing and retention collected data. Although Data Controllers are obligated to obtain the prior consent of Data Subjects, it may be inferred that the submission of personal information/supporting documentation in furtherance of a job application is a clear affirmative action, obviating the Data Controller's obligation to obtain consent from the applicant.
The Regulation demands strict compliance by employers in processing all personal data in their custody. To minimise the company's risk exposure, relevant personnel and recruiting intermediaries must be aware of the data subject's rights and maintain regulatory compliance in the use of personal data throughout the hiring process. In compliance with regulatory requirements, organisations are advised to create documented privacy, data protection and cybersecurity policies and conduct regular and comprehensive data audits. It is important that applicants are made aware of the employer's data protection policy. Information obtained must be processed, retained and disposed of within the permissible timeline.
The employer bears liability for any security breach leading to the accidental or unauthorised disclosure of or access to personal data transmitted, stored, or otherwise processed. If found to be in violation of data privacy rights, data controllers processing 10,000 data subjects or above are liable, in addition to any other criminal liability, to pay a fine of 2% of their Annual Gross Revenue for the preceding year or the sum of N10,000,000 (ten million Naira), whichever is higher. Defaulting data controllers handling less than 10,000 data subjects are to pay 1% of their Annual Gross Revenue of the preceding year or the sum of N 2,000,000 (two million Naira), whichever is greater.17
5. Employment Offer
Nigerian labour law dictates that verbal offers of employment should be followed by a written statement indicating, in an easily understandable manner, the job title, description, reporting channels, work hours, wages and benefits and relevant terms and conditions of employment.18 It is important to ensure that the emoluments offered are based on objective merit systems such as the candidate's skill, competence, experience and responsibility.19
Additionally, the offer letter should state the nature and duration of the offer, indicate that the offer letter is not an employment contract and identify any contingencies that could lead to withdrawal, such as results of a background check, medical screening, or the individual's inability to demonstrate work eligibility. Transparency can help set proper expectations and ensure the candidate enters the decision-making process informed. If the candidate accepts the offer, a signed copy of the contract should be obtained for record purposes.
Prior to hiring, employers should avoid making commitments or representations that can be construed as commitments, as such representations may be considered an offer open to acceptance. If these promises are not kept, the employer can be said to have breached an implied contract and will be liable to the job seeker for damages incurred in reliance on the employer's promise.20
Except pre-employment checks have produced unsatisfactory results, employers are not allowed to withdraw an offer made to a candidate who has completed the application process, satisfied all requirements, and accepted the job offer, especially, if the rejected applicant terminated their previous employment following acceptance.
6. Pre-employment Assessment and Inquiries
Oral or written assessments must be designed strictly to test the aptitude of potential employees. Interview questions need to be carefully worded, lest they be considered discriminatory. Questions pertaining to an applicant's personal life, religious beliefs, social and political affiliations, financial and marital status are generally considered inappropriate as they may be seen as evidence of intent to discriminate. Interviewers should also avoid remarks that may be considered derogatory, suggestive, lewd, or offensive.21
Bearing in mind data protection and privacy considerations, recruiters may conduct extensive checks on the applicant's credentials, previous work experience, health, criminal record, references, and immigration status, where applicable, to determine a candidate's eligibility.22 Pre-employment screening helps organisations make informed hiring decisions and avoid liability for negligent hiring. Conscious of the applicant's inviolable right to privacy, pre-employment screening should be lawful and in line with industry best practices.23 Locally, there are no laws limiting the extent to which employers may investigate and use findings in making hiring decisions. While education and reference checks are permissible, best practice demands that the applicant is notified before criminal background checks are conducted. Ideally, background checks and verification of credentials should be done before the offer of employment to prevent revocation due to subsequent discoveries.
7. Conclusion and Recommendations
Organisations have been known to ignore allegations of rights violations in the recruitment process until they are the defendants in a lawsuit. To avoid employment practice liability suits, employers must take proactive steps to eliminate unethical or potentially discriminatory hiring practices and promote equal employment opportunities.24 Unless the employer can show that it took adequate measures to prevent employment-related infractions, such an employer would be liable where such infractions occur. Parties involved in the hiring process should, therefore, be cognisant of the above-illustrated legal issues.
Applicants whose rights are violated during the hiring process may lodge a formal complaint with the organisation, notify relevant authorities or speak with an experienced employees' rights attorney to assess their potential claim and avenues for legal redress. Relevant authorities should ensure that aggrieved applicants have access to free or affordable grievance redress mechanisms, and appropriate remedies should be provided where abuse has occurred.
Besides the legal ramifications, the reputation of a firm suffers if instances of unlawful hiring practices come to light. Businesses that fail to implement ethical and legal recruitment standards may suffer dire consequences. In successful employment practice liability suits, victims are awarded compensatory and punitive damages. If the suit is settled out of court, paying hefty lawsuit settlements will negatively impact the business's bottom line and sustainability.
Summarily, strategies adopted by hiring managers/recruiters to source and assess suitable job candidates must comply with extant laws. Merit should be the primary criteria for recruitment, and protected characteristics cannot be used to deny or limit employment opportunities.25 Taking into cognisance global best practices and international standards, such as the ILO Guidelines for Fair Recruitment,26 organisations in collaboration with legal practitioners and human resource experts should formulate, document, implement and periodically update internal recruitment policies and hiring criteria. Internal regulation of employment and recruitment activities should be clear and effectively enforced. By so doing, hiring managers/recruiters can adopt a systematic and consistent approach to recruitment.
Employers should request candidates' feedback on their experience with the recruitment process and maintain recruitment records for successful and unsuccessful applicants. With proper documentation and regular audits, the implementation of corporate policies can be monitored. Also, record keeping is the best way for employers to protect/defend themselves against claims and lawsuits for unethical recruitment, should such allegations arise.
While most employment practice liability suits are filed against large corporations, no business is immune to such lawsuits.27 Employment practice liability insurance provides small, medium and large-scale businesses with the coverage to survive costly fines or settlements, attorney's fees, and other litigation costs.
The government bears the ultimate responsibility for advancing fair recruitment, both when acting as an employer and in a regulatory capacity. To reduce recruitment-related infractions, gaps in laws and regulations should be closed and their full enforcement pursued. Authorities should ensure that labour laws, covering all aspects of the recruitment process, are implemented in close collaboration with law enforcement agencies, representative employers and workers' organisations, the private sector, and other stakeholders.
1. Oluwademilade Odutola,Associate, Corporate Finance and Capital Market Department, S.P.A. Ajibade & Co., Lagos, Nigeria.
2. See "Legal Aspect of Recruitment and Hiring" available at https://www.hg.org/busemployment.html accessed on 23rd June 2022.
3. See " Legal Rights During the Hiring Process" available at https://www.findlaw.com/employment/hiring-process/legal-rights-during-the-hiring-process.html#:~:text=Job%20applicants%20have%20legal%20rights,age%2C%20disability%2C%20or%20religion. accessed on 23rd June 2022.
5. Know Your Legal Rights as a Job Applicant available at https://www.mightyrecruiter.com/recruiter-guide/know-your-legal-rights-as-job-applicant/ accessed on 23rd June 2022.
6. The HIV/AIDS Anti-Discrimination Act, 2014 No. 7, (the Act) criminalises discrimination against people based on their HIV status. It also prohibits any employer, individual or organization from requiring a person to take a HIV test as a precondition for employment or continued employment. See Sections 3, 5 and 6 of the Act.
7. Danny Kelman, 'Avoid These 6 Recruiting-Related Legal Issues' available at https://www.hrexchangenetwork.com/employment-law/articles/avoid-these-6-recruiting-related-legal-issues accessed on 5th August 2022.
8. Discrimination Against Persons with Disabilities (Prohibition) Act, 2018.
9. Section 1(1) and (2) of the Discrimination Against Persons with Disabilities (Prohibition) Act, 2018. The Act has been domesticated at subnational level in ten states including Lagos, Plateau, Kwara, Ondo, Ekiti, Nasarawa, Enugu, and Bauchi etc.
10. Ibid, Section 28(1).
11. Lisa Guerin, J.D. 'Lawsuits Based on the Hiring Process' available at https://www.nolo.com/legal-encyclopedia/lawsuits-based-the-hiring-process.html accessed on 15th August 2022.
12. See Insureon Staff 'Employment discrimination lawsuits: Case studies' available at https://www.insureon.com/blog/employment-discrimination-lawsuits accessed on 13th September 2022.
13. See Insureon Staff 'Employment discrimination lawsuits: Case studies' available at https://www.insureon.com/blog/employment-discrimination-lawsuits accessed on 14th August 2022.
14. See International Labour Organisation '2016 General Principles and Operational Guidelines for Fair Recruitment' available at https://www.ilo.org/africa/areas-of-work/labour-migration/policy-frameworks/WCMS_671738/lang--en/index.htm accessed on 16th September 2022.
15. The Labour Act Cap L1 LFN 2004 places certain restrictions on the employment of children and young persons. See sections 59 to 62 of the Labour Act for further reading. Other laws regulating the employment of minors include the Child Rights Act 2015 No. 26, Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2015 No.32.
16. See Bisola Scott and Oreoluwa Adebayo 'Data Protection Rights and Obligations in an Employer – Employee Relationship in Nigeria' available at https://www.mondaq.com/nigeria/employee-rights-labour-relations/1024306/data-protection-rights-and-obligations-in-an-employer-employee-relationship-in-nigeria accessed on 12th August 2022.
17. Paragraph 2.10 of the Nigerian Data Protection Regulation 2019.
18. Section 7 of the Labour Act 1970 Cap L1 LFN 2004.
19. See go2HR 'Legal Issues you Need to Consider in your Recruiting Process' available at https://www.go2hr.ca/recruitment/legal-issues-you-need-to-consider-in-your-recruiting-process accessed on 12th August 2022.
20. See Job Offers: Do's and Don'ts available at https://sbshrs.adpinfo.com/blog/job-offers-dos-and-donts#:~:text=Don't%20make%20promises.,t%20constitute%20an%20employment%20contract. accessed on 12th August 2022.
21. Punch Nigeria "UK-based Nigerian lawyer fined £45,000 for making erotic remark at female interviewee" available at https://punchng.com/uk-based-nigerian-lawyer-fined-45000-for-making-erotic-remark-at-female-interviewee/ accessed on 25th August 2022.
22. Indeed Editorial Team 'What Is a Contingent Job Offer?' available at https://www.indeed.com/career-advice/finding-a-job/contingent-job-offer accessed on 26th June 2022.
23. See 'International Employment Law' Guide available at https://www2.deloitte.com/global/en/pages/legal/articles/IELG/international-employment-law-guide.htmlaccessed on 26th June 2022.
24. Equal employment opportunity (EEO) refers to practices that are designed so that all applicants and employees are treated similarly without regard to protected characteristics such as race and sex. For further reading. See Legal Issues in Recruitment available at http://www.cilexlawschool.ac.uk/wp-content/uploads/2018/10/UQ13-The-Practice-of-Employment-Law-Sample-2018.pdf accessed on 26th June 2022.
25. Danny Kellman, 'Avoid These 6 Recruiting-Related Legal Issues' available at https://www.hrexchangenetwork.com/employment-law/articles/avoid-these-6-recruiting-related-legal-issues accessed on17th September 2022.
26. See ILO's 2016 General Principles and Operational Guidelines for Fair Recruitment available at https://www.ilo.org/africa/areas-of-work/labour-migration/policy-frameworks/WCMS_671738/lang--en/index.htm accessed on 19th August 2022.
27. See EPLI 'What is Employment Practices Liability Insurance?' available at https://www.iii.org/article/what-employment-practices-liability-insurance-epli accessed on 17th September 2022.
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