Background information on applicants

Background checks

Are there any restrictions or prohibitions against background checks on applicants? Does it make a difference if an employer conducts its own checks or hires a third party?

There are no restrictions against background checks on applicants. However, this is subject to section 37 of the Nigerian Constitution, which guarantees a right to privacy for citizens, their correspondence, telephone conversations, and telegraphic communication.

Medical examinations

Are there any restrictions or prohibitions against requiring a medical examination as a condition of employment?

Although not expressly stipulated under Nigerian law, these concerns are governed by the contract of employment between an employer and an employee. Thus, once stipulated therein, the employee becomes bound by such terms.

Further, people living with HIV or AIDS in Nigeria are protected by legislation and case laws. The legal position in Nigeria is that mandatory employee HIV testing is discriminatory.

Drug and alcohol testing

Are there any restrictions or prohibitions against drug and alcohol testing of applicants?

This is not expressly stipulated under Nigerian law. These concerns are governed by the contract of employment between an employer and an employee, and as such, once stipulated therein, the employee is bound by such terms.

Hiring of employees

Preference and discrimination

Are there any legal requirements to give preference in hiring to, or not to discriminate against, particular people or groups of people?

There are provisions of law under the Labour Act and the Nigerian Constitution that prohibit discrimination of all forms in employment.

However, there are no legal requirements under Nigerian law that give preference to hiring particular groups of people. These provisions are more applicable to federal employment and appointments that stipulate that the principle of federal character be applied to ensure that appointments to public service institutions (exclusively) fairly reflect the linguistic, ethnic, religious and geographical diversity of the country.

Must there be a written employment contract? If yes, what essential terms are required to be evidenced in writing?

The Labour Act (which governs unskilled workers) specifies that not later than three months after the beginning of a worker’s period of employment, the employer shall give to the worker a written statement or contract.

Contracts of employment must be in writing and must contain:

  • the name of the employer or group of employers and, where appropriate, of the undertaking by which the worker is employed;
  • the name and address of the worker and the place and date of his or her engagement;
  • the nature of the employment;
  • if the contract is for a fixed term, the date when the contract expires;
  • the appropriate period of notice to be given by the party wishing to terminate the contract;
  • the rates of wages and method of calculation thereof and the manner and periodicity of payment of wages; and
  • any terms and conditions relating to hours of work, holidays and holiday pay and incapacity to work owing to sickness or injury, including any provisions for sick pay.

To what extent are fixed-term employment contracts permissible?

Fixed-term contracts are permissible under Nigerian law, and there is no stipulation as to the maximum permissible duration for such contracts.

Probationary period

What is the maximum probationary period permitted by law?

There are no provisions for probationary periods under the Labour Act and, as such, where they are in operation, they are stipulated under the relevant contract of employment. The Supreme Court of Nigeria has upheld the validity of probationary periods.

Classification as contractor or employee

What are the primary factors that distinguish an independent contractor from an employee?

The main distinguishing features are the general conditions of employment and the related benefits available provided in the engagement contract. The Supreme Court in SS Co Ltd v Afropak (Nig) Ltd has prescribed the following criteria to provide guidance in making this determination:

  • the place where the work is carried out;
  • ownership of the equipment, tools, or instruments used in providing the services;
  • the hours of work;
  • the ability to delegate duty; and
  • whether or not office accommodation or secretary is provided.
Temporary agency staffing

Is there any legislation governing temporary staffing through recruitment agencies?

The Labour Act and judicial precedent provide that all employees must have a contract of employment within three months of engagement. However, no legislation states any other stipulations of employment, and as such, temporary staffing is governed by contracts of employment with temporary employees.