Which issues would you most highlight to someone new to your country?
The main issues to highlight regarding employment in Senegal are the following:
- Senegal has a plentiful workforce composed mainly of young people.
- The employment sector is regulated by laws and regulations that take into account the interests of employers and employees. However, the rules that apply to employment contracts and dispute resolution seem to favour employee interests.
- Disputes arising in the employment sector are subject to special regulations and referred to courts which have exclusive jurisdiction over such disputes.
What do you consider unique to those doing business in your country?
There are many factors to be considered when doing business in Senegal. In terms of employment, the government has set up incentives that aim to provide flexibility in this regard.
Is there any general advice you would give in the employment area?
Senegal is a French speaking country and, therefore, contracts must be drafted in French to be valid and registered (see Decree 63-00118/MPF/DTSS of 18 February 1963, which sets out the forms and methods of drawing up employment contracts and probationary contracts).
In addition, parties undertaking projects which concern the employment sector should enlist the assistance of a local practising lawyer. This is important given the specificity of the sector and the fact that employment in Senegal is beyond the scope of the Organisation for the Harmonisation of Corporate Law in Africa.
Emerging issues/hot topics/proposals for reform
Are there any noteworthy proposals for reform in your jurisdiction?
As far as is known, there are no proposed revisions or reforms of existing legislation.
What are the emerging trends in employment law in your jurisdiction?
Emerging trends in employment law in Senegal include:
- Improved equality of opportunity and equal treatment in employment;
- the expansion of interim work;
- the expansion of unions;
- the promotion of local content policies in the labour sector; and
- the free movement of goods and persons within the Economic Community of West African States (ie, Benin, Burkina Faso, Cabo Verde, Ivory Coast, Gambia, Ghana, Guinea Bissau, Guinea, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo).
The employment relationship
Country specific laws
What laws and regulations govern the employment relationship?
Several regulations govern employment relationships, including:
- Act 97-17 of 1 December 1997, which constitutes the Labour Code;
- the National Interprofessional Collective Agreement; and
- the collective agreements specific to the various sectors of activity.
Who do these cover, including categories of worker?
These laws and regulations cover all categories of:
- union; and
- protected employee (eg, disabled workers and staff representatives).
Are there specific rules regarding employee/contractor classification?
The abovementioned laws and regulations provide specific rules regarding employee classification.
Must an employment contract be in writing?
In principle, only fixed-term contracts must be in writing. However, in practice, contracts cannot be registered unless they are in writing and registration of all employment contracts is mandatory under Senegalese law.
Are any terms implied into employment contracts?
Yes, some terms are implied into employment contracts. Under Senegalese law, contracts need not mention all of the terms that bind the parties. For example, a fixed-term contract need not mention that it cannot be renewed more than once. Parties should know that even though such provision is not mentioned in the contract, they must comply with the laws and regulations governing the conditions and duration of fixed-term contracts, which are mandatory under the Labour Code.
Are mandatory arbitration/dispute resolution agreements enforceable?
Under Senegalese labour law, disputes arising from employment contracts are not subject to arbitration. Consequently, arbitration agreements are not enforceable. However, no dispute can be resolved by a court without a preliminary step of conciliation.
How can employers make changes to existing employment agreements?
Any substantial change to an employment agreement by the employer requires the employee’s consent (Article L 67 of the Labour Code).
Is a distinction drawn between local and foreign workers?
Yes, a distinction is made between local and foreign workers under Articles L 33 and L 34 of the Labour Code, which include provisions concerning the contracts of foreign workers. These provisions set out specific rules and processes with which an employment contract with a foreign worker should comply.
Employers should send any employment contract with a foreign worker to the Department of Labour for approval.
What are the requirements relating to advertising positions?
In principle, no specific provisions concern the advertisement of positions. However, in practice, they should include:
- the job title;
- a description of the main tasks that the role entails;
- the duration of the post; and
- the place of work.
Background checks What can employers do with regard to background checks and inquiries in relation to the following:
Employers are not obliged to conduct background checks and inquiries concerning criminal records. However, where they do, they can decide whether to hire the candidate based on the results.
Employers can check a candidate’s medical history and decide not to recruit an employee based on the results.
Employers can conduct drug screenings of candidates and decide not to recruit an employee based on the results.
Employers can conduct credit checks of candidates and decide not to recruit an employee based on the results.
Employers can check the immigration status of candidates and decide not to recruit an employee based on the results.
Employers can check candidates’ social media accounts and decide not to recruit an employee based on the results.
Employees are not obliged to provide information regarding their personal background unless required by the regulations governing their specific employment sector. However, employees can agree, on request of an employer, to share information with their employer on its request.
Wages and working time
Is there a national minimum wage and, if so, what is it?
There are two national minimum wages:
- the guaranteed interprofessional minimum wage, which is the minimum wage that an employer can pay (approximately CFA36,243); and
- the guaranteed agricultural minimum wage.
Are there restrictions on working hours?
Under the Labour Law, working hours cannot exceed:
- 8 hours per day;
- 40 hours per week; and
- 173.33 hours per month.
Night work is possible between 10:00pm and 5:00am.
Hours and overtime
What are the requirements for meal and rest breaks?
Rest breaks of 30 minutes or one to two hours are provided for by law.
How should overtime be calculated?
Under Senegalese labour law, ‘overtime’ is defined as any additional time worked beyond regular working hours and is calculated by multiplying the hourly salary by the following rate:
- for overtime worked during the day – 15% for the first eight extra hours worked and 40% for any extra hours;
- for night hours – 60% for any extra hours worked; and
- for overtime worked on weekends or public holidays – 60% for any extra daytime hours and 100% for any extra night-time hours.
What exemptions are there from overtime?
Exemptions from overtime are governed by Article L 138 of the Labour Code relating to hours of work within specific sectors.
For example, employees who work as maids can work 60 hours per week instead of 40 hours without having the right to claim 20 hours’ overtime.
Is there a minimum paid holiday entitlement?
Yes, the minimum paid holiday entitlement is equal to 12 months (Article L 150 of the Labour Code).
What are the rules applicable to final pay and deductions from wages?
Final pay and deductions from wages cannot be lower than the national minimum wage and must be paid in West African francs. Payment must be made except in all cases, except cases of force majeure in the course of work, and must be paid at regular intervals not exceeding:
- 15 days for employees engaged on a daily or weekly basis; and
- one month for workers engaged on a fortnightly or monthly basis.
Monthly payments must be made no later than eight days after the end of the month of work qualifying for salary (Articles L 105 et seq of the Labour Code).
Deductions from wages are permitted. However, under Article L 130 of the Labour Code, they should apply only to the portion of salary that can be subject to deduction or seizure.
What payroll and payment records must be maintained?
Payroll and payment records can be manual or electronic. There is no obligation to use electronic payrolls, but manual payrolls must be kept up to date (Articles L 116 and L 221 of the Labour Code).
Discrimination, harassment & family leave
What is the position in relation to: Protected categories
Children below the age of 15 should not be employed in any company, even as apprentices. However, when requested, the minister of labour can grant exemptions under Article L 145 of Labour Code.
Senegal ensures the equal opportunity and treatment of citizens regarding access to vocational training and employment, regardless of ethnicity, race, sex and religion (Article L 1 of the Labour Code.)
Under Article 2 of the Social Orientation Act, disabled workers have equal opportunities and are granted specific rights against all forms of discrimination.
Depending on professional qualifications, job and performance, wages are equal for all employees, regardless of their origin, sex, age or status (Article L 105 of the Labour Code).
(e) Sexual orientation?
As far as is known, the Labour Code provides no specific rules regarding sexual orientation.
Senegal ensures the equal opportunity and treatment of citizens regarding access to vocational training and employment, regardless of ethnicity, race, sex or religion (Article L 1 of the Labour Code).
Employers are not obliged to conduct background or medical checks of employees or candidates. However, where they do, they can decide not to recruit a candidate based on the results.
There are some incentives under the Social Orientation Act aimed at favouring the employment of young workers through internships and apprenticeships.
Family and medical leave
What is the position in relation to family and medical leave?
Employees are entitled to the following family and medical:
- their wedding – three days;
- wedding of their child or sibling – one day;
- death of their spouse or direct descendant – four days;
- death of their sibling – two days;
- death of their parent-in-law – two days;
- birth of their child – one day;
- baptism of their child – one day;
- their child’s first communion – one day; and
- hospitalisation of their spouse or child – one day.
However, any leave permitted by law cannot be taken without proper notice being given to employers.
By law, employees can seek an extension of leave where necessary. If such a request is granted, the extra leave will not be remunerated. Under existing legislation, employers must grant medical leave to employees when needed to treat an illness. However, employees must provide a medical certificate to prove their illness and the time needed to treat it.
What is the position in relation to harassment?
As far as is known, there are no rules in the Labour Code regarding harassment.
What is the position in relation to whistleblowing?
As far as is known, no specific provisions concern whistleblowing.
Privacy in the workplace
Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?
Under existing law, employers must respect their employees’ right to privacy. Employees can challenge any measures that employers take which breach such rights.
To what extent can employers regulate off-duty conduct?
In principle, employers cannot regulate off-duty conduct. However, under the Social Security Code, some off-duty conduct (eg, accidents that take place when an employee is travelling to or from work) is not considered off-duty conduct (Article 33 of the Social Security Code).
Are there rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?
Employers should respect employees’ rights regarding their social media passwords and employees can challenge any measures taken by their employer which breach such rights. However, employees should not infringe the rules set out by their employers to protect the company.
Trade secrets and restrictive covenants
Who owns IP rights created by employees during the course of their employment?
Unless contrary to a contractual agreement, IP rights created by employees during the course of their employment belong to their employers (Article 11 of the Agreement Revising the Bangui Agreement of 2 March 1977 on the Creation of an African Intellectual Property Organisation).
What types of restrictive covenants are recognised and enforceable?
Non-compete clauses are recognised and enforceable.
Are there any special rules on non-competes for particular classes of employee?
No. A general provision forbids any category of employee, unless otherwise agreed, from exercising any professional activity that is likely to compete with that of their employer, or that can impede the proper performance of agreed services (Article 17 of the National Interprofessional Collective Agreement).
Discipline and grievance procedures
Are there specific laws on the procedures employers must follow with regard to discipline and grievance procedures?
Under Article 16 of the National Interprofessional Collective Agreement, employers should comply with the following procedures when undertaking disciplinary or grievance procedures:
- An employer should send a letter requesting the employee to explain the alleged grievance;
- The employee should respond to this letter.
- The employer should assess the employee’s response and take a decision based thereon.
Under the collective agreement, the following disciplinary penalties are provided:
- a reprimand;
- a verbal or written warning;
- a suspension for one to three days;
- a suspension for four to eight days; or
- a dismissal.
Unions and layoffs
Is your country (or a particular area) known to be heavily unionised?
Although there is no data regarding the trade union sector, Senegal is a heavily unionised country, particularly Dakar, the capital city.
What are the rules on trade union recognition?
Under the Labour Code, the recognition of trade unions is subject to specific procedures, including the filing of legal documents and information requested by law (Article L6 et seq of the Labour Code).
What are the rules on collective bargaining?
Rules concerning collective bargaining are included in Article L 92 of the Labour Code.
Are employers required to give notice of termination?
Yes, unless otherwise agreed by the parties or stipulated by specific rules, employers must give notice of termination, except in cases of gross negligence (Article 22 of the National Interprofessional Collective Agreement).
What are the rules that govern redundancy procedures?
Senegalese law provides specific procedures that govern redundancy. The procedure differs depending on the number of employees concerned.
Are there particular rules for collective redundancies/mass layoffs?
Article L 60 et seq of the Labour Code set out rules regarding collective redundancies or mass layoffs.
What protections do employees have on dismissal?
On dismissal, employees have specific rights that their employers should not breach. No employee should be dismissed without formal written notice outlining the grounds of their dismissal.
The burden of the proof of the grievances against an employee falls on the employer.
Some employees enjoy specific protections with regard to their status. These protections include:
- staff representatives (Article L 214 et seq of the Labour Code); and
- pregnant women (Article L 143 of the Labour Code).
Specific procedures govern the dismissal of these categories of worker.
Jurisdiction and procedure
Which tribunals or courts have jurisdiction to hear complaints?
The labour courts have jurisdiction to hear employment-related complaints. However, for disputes arising from the termination of an employment contract – and notwithstanding any conventional attribution of jurisdiction – employees can choose between the court in their place of residence or their place of work (Article L 229 of the Labour Code).
What is the procedure and typical timescale?
The labour courts have exclusive jurisdiction over any dispute arising from an employment contract. Claimants are not obliged to hire a lawyer. Rather, they can be represented by a union representative or can have no representative.
A preliminary conciliation step before a labour court hearing is compulsory. Where there is no conciliation, the case is referred to the tribunal’s litigation section. There is no specific timescale provided under the Labour Code in this regard.
What is the route for appeals?
Any judgment rendered by a first-instance tribunal is subject to appeal before the court of appeal with jurisdiction over the case. Court of Appeal judgments are subject to a last-resort recourse before the Supreme Court (Article L 262 et seq of the Labour Code.Any judgment rendered by a first-instance tribunal is subject to appeal before the court of appeal with jurisdiction over the case. Court of Appeal judgments are subject to a last-resort recourse before the Supreme Court (Article L 262 et seq of the Labour Code.