Discrimination In Work Place Against Nursing Mothers Resulting To Resignation Standard Chartered Bank Of Nigeria Limited Case By Daniel Kip – TheNigerialawyer

It is no strange story or news how nursing mothers in some firms
and establishments, especially Banks are made to meet certain
targets, and are constrained to work tediously, even in such a
state. Some of these establishments, etc., have placed their gains,
turnover and/or profit far above the physical and mental wellbeing
of their staff/employees. In other instances, the pregnant
employees are made to work even up to their due month of delivery.
This write-up seeks to appraise the Ndidi Adegbite’s case, and in
so doing expose this unfair labour practice and the attendant
repercussions. Straightaway to the facts of the case.

Ndidi Adegbite was employed as an Account Relationship Officer
by the Standard Chartered Bank of Nigeria Limited. In the course of
her employment, she applied for and was granted maternity leave
from 7^th February, 2005, to 6^th May, 2005.
Subsequently, the said leave was further extended on her
application due to the ill health of her new born baby.

As a result of the period of her leave, her appraisal rating
& performance for the year 2005 was adjudged poor by her
Supervisor and one of the executive director of the Bank. This was
disclosed to her in a meeting separately held with them on
3^rd February, 2006. On 8^th February, 2006,
Ndidi Adegbite resigned from the Bank’s employment, and on
15^th June, 2007, filed a suit against the Bank alleging
inter alia, that her resignation was involuntary and amounted to
wrongful dismissal as she was informed in the said meeting that her
appraisal was unfavorable to her continued employment. She also
asserted that in evaluating her performance for the year 2005, the
Bank discriminated against her on grounds of sex and by reason of
her being a nursing mother. The basis of her foregoing assertion
was that her target for 2005 was higher than that of her team
members who were not women or nursing mothers. The Bank however,
refuted some of the allegations of Ndidi Adegbite.

The High Court of Lagos State in the said case with suit No.
ID/757/2011, presided over by Justice Y. A. Adesanya in its
judgment delivered on 14^th October, 2012, upheld the
case of Ndidi Adegbite. Pertinent to this discourse is the
following pronouncement, which was reaffirmed by the Court of
Appeal in Standard Chartered Bank v. Adegbite (2019)1 NWLR (Pt.
1653)348. May I reproduce it thus:

“It has been argued for the defendant that the claimant did
not adduce evidence of how other nursing women in the employment of
the defendant were treated differently from her or vice versa. It
suffices that the claimant has shown how she was treated
differently from other employees (her team members) who were not
women or nursing mothers in the determination of targets for the
year. The defendant has not adduced evidence to controvert that of
the claimant that her target for the year was well over and above
that of her other team members in spite of the peculiar but
legitimate absence from work for half of that same year. She was
clearly not treated with equality with other team members. It would
seem like a case of setting her up to fail in the achievement of
the set objectives and punishing her for being a nursing mother.
Had she been given the same target as her other team members in the
circumstances, without regard for the legitimate time spent away
from work, this would still be held to be discriminatory. For it
would be a case of discouraging them from exercising a right that
is peculiar to their sex as women. What is worse the claimant was
given a target far above that of her team members. I will have to
hold that this decision of the defendants could only have been
informed by prejudice against the claimant on the basis of her sex
and the fact that she was a nursing mother.”

On the part of Court of Appeal, Barka, J.C.A, delivering the
leading judgment, had this to say at page 374, paras. C-F of
Standard Chartered Bank v. Adegbite (2019)1 NWLR (Pt. 1653)348:
“I have with the arguments of the learned counsel on both sides
in mind critically examined the evidence adduced, and the findings
of the lower court on the issues canvassed. It is thus clear from
the records, that the trial court dutifully as submitted,
understood the respondent’s complaint against the appellants. Set
out the evidence laid before it and evaluated same ascribing value
to the testimonies before it in arriving at its finding that
respondent was indeed discriminated against on ground of her sex
and being a nursing mother, consequent upon which her performance
was poorly appraised for the year 2005 and was thereby harassed
into resigning her employment with the appellant. The court also
found that the resignation of the respondent was involuntary and
therefore construed as a dismissal in law and therefore wrongful. I
understand my duty especially where the trial court has
satisfactorily carried out its function of properly and
dispassionately appraising the evidence given by both parties, to
affirm the decision reached. I have not been able against the
backdrop of the evidence adduced being convinced on the pervasive
nature of the lower court’s findings, being complained about and
would seriously avoid interfering with the beautiful exercise of
evaluation by the lower court. I would in the circumstance
determine the issue in favour of the respondent and against the
appellant .”

I am in firm agreement with the findings and decision of the
lower court, and of the Court of Appeal as to whether Ndidi
Adegbite’s constitutional right not to be discriminated against on
grounds of sex and her being a nursing mother was violated, and the
consequential damages awarded. The court’s conclusion that her
resignation, which was induced and occasioned by the actions and
treatment meted on her, amounts to involuntary resignation and
therefore constructive dismissal, was in my view rightly
reached.

This should serve as a warning to employers who place their
employees under extremely unbearable and discriminatory conditions,
leaving the said employee with no other option than to resign.

Finally, maternity leave is permissible under our
Labour/Employment jurisprudence, and thus when granted an employee;
it will be fool-hardy and indeed oppressive to countenance the said
period granted in the assessment of the performance of such an
employee, or cut down his/her pay/salary for the period. May I
borrow the submission of the Learned Counsel for Ndidi Adegbite,
T.A.B. Oladipo, Esq. where he persuaded the court placing reliance
on the decision of CNAVIS v. Thibault (1998) ECR-2011and
Brandenbury v. Ursula (2004) ECR1-000, both cited in Michael
Conolly Discrimination Law, 2^nd Edition (2011), paras.
4.049 at page 122 thus:

“Treatment attributable to maternity, whether meted out during
or after maternity or as a result thereof, is direct sex
discrimination.”

The United States is championing legislations, and I am of the
opinion that Nigeria should imbibe same, which accommodate the
needs of nursing mothers in work places by providing time, a
private space, and a supportive work climate. One of such
legislations is that which provides that, for a period of up to one
year following a child’s birth, employers must give an employee
‘reasonable break time’ each time she needs to express milk. The
law also requires employers to provide a location, other than a
bathroom, shielded from view and free from intrusion where the
employee can express milk.

In the event that the above decision of the Court of Appeal is
further tested at the apex court, it will be interesting to know
what direction the Supreme Court will tilt.

DANIEL KIP is a Human and Employment Rights
Lawyer., +2348036964847. [email protected]^[1]

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