When an employee is treated somewhat differently from other employees on grounds not supported by contract or that are indeed in conflict with the law such worker is said to have been discriminated against.
Sex, age, ethnicity, religion, trade union membership and political opinion are some of the grounds upon which workers may be discriminated against in this country. While positive discrimination like affirmative action may be morally defensible, discrimination in most cases is difficult to justify or defend.
As a matter of fact the ILO regards the elimination of discrimination in respect of employment and occupation as a fundamental principle which all member states are obliged to respect.
Although Nigeria has ratified the ILO Equal Remuneration Convention, 1951 and the Discrimination (Employment and Occupation) Convention, 1958, one can state without equivocation that the state of protection against discrimination in Nigeria is very weak. There are few anti-discrimination laws.
Fewer still are litigations on them thereby rendering the jurisprudence on the subject non-existent or at best under-developed. In this part of this work we shall examine some of the statutes that can be described as anti-discrimination or having anti-discrimination elements.
There is an anti-discrimination protection in section 42 of the Constitution. The section provides that â€˜a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person be subjected either expressly by or in the practical application of any law in force in Nigeria or any executive or administrative action of the government to disabilities or restriction to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions are not made subjectâ€™.
It is a limited provision in many ways. First, it seems to protect Nigerian citizens only. Second, it merely protects a person against discrimination based on statute or arising from the application of a statute or discrimination based on executive or administrative action of the government.
Given the fact that government is increasingly becoming an insignificant employer vis a vis the private sector it follows that there is no constitutional protection as such for employees in respect of discriminatory policies in the workplace.
Section 42(2) which provides that â€˜no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birthâ€™ does not afford better protection either. The constitution does not define the phrase â€˜circumstances of his birthâ€™. The phrase is rather too nebulous.
Discrimination in the workplace is also forbidden by section 17 of the Constitution. The section states that the state social order is founded on the ideals of freedom, equality and justice. It goes on to provide that every citizen shall have equality of rights, obligations and opportunities before the law.
More specifically, the section stipulates that the state shall ensure that â€˜all citizens, without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employmentâ€™ and that â€˜there is equal pay for equal work without discrimination on account of sex, or any other ground whatsoever.
As we have already noted, section 17 being a provision under Chapter II of the Constitution is not justiciable. It follows therefore that unless a law is passed embodying the provision, it is impossible to rely on it as a basis for challenging any discriminatory practice in a court of law.
Membership of trade unions
A person who is eligible to belong to a trade union cannot be denied membership of the trade union on the ground that he or she is of a particular community, tribe, place of origin, religion or political opinion.
(Section 12 of the Trade Unions Act). If any person is refused admission into a trade union on the stated discriminatory grounds, the union and all its officials shall be guilty of an offence. (Section 12(2)).
Discriminatory Contract of Employment
Contracts of employment that cause the dismissal or otherwise prejudice a worker on the grounds of either belonging to or not being a member of a trade union membership or participating in trade union activities is a contravention of section 9(6) of the Labour Act.
Thus, an employer may not determine the employment of a worker or refuse to employ a worker on the ground that the worker shall or shall not join a trade union or shall not relinquish membership of a trade union.
Persons with Disability
In 1993, the Government promulgated a law to protect the disabled persons and ensure that they are accorded equal treatment due to other persons (Section 2).
Nigerians with Disability Act, 1993, as the law is known, defines a disabled person as one â€˜who has received preliminary or permanent certificate of disability to have condition which is expected to continue permanently or for a considerable length of time which can reasonably be expected to limit the personâ€™s functional ability substantially , but not limited to seeing, hearing, thinking, ambulating, climbing, descending, lifting, grasping, rising, any related function or any limitation due to weakness or significantly decreased endurance so that he cannot perform his everyday routine, living and working without significantly increased hardship and vulnerability to everyday obstacles and hazardsâ€™.
Section 6 of the Act imposes a duty on the government to take measures to promote the employment of the disabled. Accordingly, a disabled person shall not by reason only that he is such a person be subjected to any disability or conditions by any employer. There is however what may be referred to as positive discrimination in favour of disabled persons as section 6(2) of the Act requires all employers of labour to reserve for the disabled not less than 10% of the work force.