Discrimination In Work Place Against Nursing Mothers Resulting To Resignation – An Appraisal Of The Ndidi Adegbite V. Standard Chartered Bank Of Nigeria Limited Case By Daniel Kip

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. kipdann@gmail.com