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?

The Employment Code does not expressly prohibit employers from conducting background checks on applicants. Further, it does not make a difference whether the employer conducts its own checks or hires a third party to do so.

Medical examinations

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

There are no restrictions against requiring a medical examination as a condition of employment provided that there is no discrimination in the process. An employer is permitted by law to request the applicant to be medically examined to determine his or her fitness for the job, and it reserves the right to hire or not to hire the applicant on this basis. The law, however, requires the employer to keep the applicant’s medical records and maintain confidentiality in the event that these are submitted.

Drug and alcohol testing

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

There are no restrictions against requiring drug and alcohol testing for applicants provided that there is no discrimination in the process. An employer reserves the right to hire or not to hire an employee for failing to submit to a drug and alcohol test when it is specifically required.

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?

The law provides that when filling a vacancy, an employer must prioritise a Zambian citizen unless the Zambian citizen does not possess the requisite skills for the job, or there is no application made by a Zambian citizen. In terms of discrimination, the Employment Code imposes a general obligation on employers to promote equal opportunity in employment and to eliminate discrimination in the workplace. The Code prohibits discrimination against an employee or prospective employee either in policy or in practice, and in respect of recruitment, training, promotion, the terms and conditions of employment and termination of employment on the basis of specific grounds, including colour, nationality, race and social origin.

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

An employment contract need not be in writing; however, it must be in writing if it is for a period of six months or more. Where an employment contract is in writing, the following essential terms must be expressly stipulated in the contract:

  • the date of commencement, form and duration of the employment contract;
  • the date on which the employee’s period of service began, taking into account any employment with a previous employer that may count towards that period;
  • the place at which, or the geographical limits within which, any work under the contract is to be performed;
  • the ordinary working hours and days;
  • the wages to be paid and the scale or rate of the wages, the method of calculating the wages and details of any other benefits;
  • the details of any cash payments, payments in kind or any other benefits;
  • the intervals of payment of the wages of the employee, monthly or at a shorter period, as the case may be;
  • if applicable, the particulars of any food to be provided under the contract or of any cash equivalent of the food;
  • the deductions to be made to an employee’s wages; and
  • the nature of the employment and tasks, where applicable and practical, and the general operations involved and any additional details necessary to clarify the nature of the work for which the employee has been contracted.

To what extent are fixed-term employment contracts permissible?

The Employment Code provides for the execution of both long-term and short-term employment contracts. Long-term contracts are contracts either for a period exceeding 12 months, renewable for a further term, or for the performance of a specific task or project that is to be undertaken over a specified period of time and of which the termination is determined in advance by the parties. Short-term contracts are contracts for a period not exceeding 12 months.

Probationary period

What is the maximum probationary period permitted by law?

The maximum probationary period permitted by law is three months, which may be extended at the discretion of the employer for a further period of not more than three months.

Classification as contractor or employee

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

To qualify as an employment relationship, the Employment Code emphasises the need for employer control and for the work to be carried out personally by the employee, for the benefit of the employer and within specific working hours. Additionally, the Zambian judicial system relies heavily on common law principles in drawing a distinction between employees and independent contractors.

Temporary agency staffing

Is there any legislation governing temporary staffing through recruitment agencies?

Yes, the Employment Code provides for the regulation of employment agencies. It does not, however, provide specifically for temporary staffing through these agencies. The period of the contract is left to the agreement of the parties.