June 17, 2020

REMOTE WORKING AS THE NEW NORMAL AND EMPLOYERS\’ LIABILITY

by AO2LAW

Introduction

The
Covid-19 pandemic has occasioned widespread remote working on a scale never before
seen. Man’s primordial instincts of survival, coupled with government’s
directives and medical advisory on the need for social distancing, have all left
the most conservative employers and their liberal counterparts alike, with little
choice but to embrace remote working in a bid to avoid exposure to the virus.

This
treatise is aimed at highlighting some possible liabilities and exposures of an
employer in the face of remote working by its employees.

Employers’ Liabilities and Exposures

Data Privacy and Security of Information Technology

Now more than ever before, there is a dire need for
employers to take concrete steps to ensure the integrity and security of their digital
and information technology systems, comprising of their network, computer
systems, email addresses, website, database, passwords and the likes, to
prevent a breach which could potentially saddle employers with unfathomable liabilities
and exposures.

In the modern world, the core of everyday business
activities primarily revolves around communication and the exchange of
information amongst persons within and outside an organization. In this light,
it is crucial for employers to carry out an assessment of its digital,
networking and information security, and to ensure the integrity of these systems
and the information stored, circulated or being processed therein, to avoid
unwelcome exposures and their attendant liabilities.

There is, therefore, a need for employers to educate
its employees on data privacy, the dangers of unauthorized access to confidential
information and the need to comply with the Nigerian Data Protection
Regulations (NDPR) 2019 as it relates to use and management of personal data.

An employer should regularly inform its employees of
the minimum security requirements they are mandated to comply with, to ensure that
the security of data or the digital systems are not breached or compromised while
working remotely. Some of these
requirements, as contained in the Nigerian Data Protection Regulations (NDPR)
2019, include:

i.
The need to secure personal data
against all foreseeable hazards and breaches such as theft, cyberattack, viral
attack, dissemination, manipulations of any kind, damage by rain, fire or exposure
to other natural elements[1].

ii.
The need for anyone involved in
data processing or the control of data to develop security measures to protect
data; such measures include but not limited to protecting systems from hackers,
setting up firewalls, storing data securely with access to specific authorized
individuals, employing data encryption technologies, developing organizational
policy for handling personal data (and other sensitive or confidential data),
protection of emailing systems and continuous capacity building for staff[2].

Safety of the Workplace

An employer is obligated to provide a safe working
environment for its employees. In the
face of the coronavirus pandemic, while there may be no current case law
on the applicability of this duty of an employer where an employee works remotely
from his home (or any other place of his choosing, but not in the work place or
some other place incidental to the employee’s employment), it is conceivable
that such employee’s home could be adjudged to be an extension of the workplace
during the normal business hours of his employers. If that were to be the case,
it therefore follows that the applicable statutory requirements on the safety
of the workplace and the employer’s liability for any accident or injury
occurring, could be expected to apply.

An employer could, thus, offer to undertake an
assessment of the safety of the homes of all its employees, but this may be difficult
to execute in reality and will necessarily require the consent of the employee,
to prevent legal issues. However, even if such assessment were to be
effectively executed, same may not necessarily guarantee an avoidance of future
liabilities in this regard, as the instant scenario is quite novel in our
jurisprudence.

An applaudable step an employer may take, is to demonstrate
its duty of care on the safety and wellbeing of its employees. This an employer
can do, by providing its employees with safety tips and guidelines for working remotely,
particularly with respect to the employee’s immediate home environment, to
reduce the likelihood of an accident or injury from occurring. An employer
could in providing these tips, request the employee’s acknowledgment of
receipt, participation or attendance at any such safety discussions, which
could subsequently be used as evidence of an employer’s performance of its duty
of care in this regard.

Liability under the Employees Compensation Act, 2010

The
Employees Compensation Act (the “ECA”) provides
for an open and fair system of guaranteed and adequate compensation for all
employees or their dependents for any death, injury, disease or disability arising
out of or in the course of employment[3].

The
ECA provides that any employee, whether
or not in a workplace, who suffers any disabling injury arising
out of or in the course of employment,
shall be entitled to payment of compensation in accordance with Part IV of the
Act[4]. The
ECA also provides for the compensation of an employee for mental stress, where[5]:

(a)
the mental stress
is an acute reaction to a sudden and unexpected traumatic event arising out of
or in the course of the employee’s employment;

(b)
the mental stress
arises out of the nature of work or the occurrence of any event in the course
of employment.

(c)the
mental stress arises out of the decision of the employer to change the work or
working conditions in such a way that unfairly exceeds the work ability and
capacity of the employee leading to mental stress.[6]

Section
11 of the ECA should be noted, as
same provides that an employee would be entitled to compensation if the injury
to an employee occurs outside the normal workplace where the nature of the
business extends beyond the usual workplace, or the nature of the employment is
such that the employee is required to work both in and out of the workplace, or
the employee has the authority or permission of the employer to work outside
the normal work place. This provision, thus, easily caters for an injury
suffered by an employee in the course of working remotely.

It
is worthy of note that the ECA defines the “workplace” to include any premises or place where a
person performs work or needs to be or is required to be in the course of
employment. This definition
easily covers remote working, particularly when you consider that remote
working is required and agreed by an employer and an employee for the purpose
of the employee being able to perform his work in the course of his employment,
as in the current covid-19 situation.

These
provisions cited above, can be appropriately interpreted to apply to remote
working, and in the event of any death, injury, disease, mental stress or
disability arising out of or in the course of employment, same could be
utilized to determine the employer’s liability and subsequent compensation
under the ECA.

While
not necessarily absolving an employer from liability under the ECA, an employer
could demonstrate its duty of care towards the safety and wellbeing of its
employees by regularly keeping tabs on their physical, emotional and mental
wellbeing and providing them with health and safety tips, as discussed above.

Liability to pay Employees’ Wages and Salaries

An employer is liable for the timely payment of the
wages of its employees[7].
This obligation of an employer continues to apply during the period its
employees work remotely by agreement or under the authority of the employer, and
the fact that an employee is not physically working within the work place
provided by the employer, is of no consequence in this regard.

However, the employer and its employee can mutually
agree on modalities towards the amelioration of the hardship occasioned by the
pandemic on the employer, resulting in the employer’s inability to meet with
the wage and salary obligations as agreed. These could be in the form of a cut
in wages and salaries or total renegotiation of the terms of contract of
employment.

Liability to remit deductible taxes to the appropriate authority

Taxes are required to be remitted to the government
of the state where an employee is resident, and this is an obligation that an
employer could easily run afoul of in the face of remote working. To avoid
liabilities in this regard, an employer should take care to ensure that
deductible taxes from an employee’s wages are remitted to the government of the
disclosed state of residence of the employee.

Other General Liabilities

Other general liabilities of an employer in the face
of remote working will include a duty to provide work suitable to the worker’s
capacity on every day the employee is available and fit for work, except where
the worker has breached his contract, or except where a collective agreement
provides otherwise[8].
Also, an employer could be liable for the reimbursement of the reasonable
out-of-pocket expenses incurred by its employee in carrying out his employment
duties. An employer could also be reasonably expected to provide its employees
with the requisite tools to enable him to perform his duties or to reimburse
him for reasonable expenses incurred in providing same himself (upon obtaining
his employer’s authorization).

Vicarious Liability for the Acts of its Employees during Remote
Working

It
is settled law that an employer is generally liable for the acts of its employee
committed while acting in the course of his employment[9].
This is the principle of vicarious liability, which has been held by the Courts
in a plethora of cases.

Vicarious
liability imposes liability on one person for the actionable conduct of another,
based solely on the relationship between the two persons, for example, the
liability of an employer for the acts of an employee, or a principal for torts
or contracts of an agent[10] .

In the case of R.O
Iyere v Bendel Feed and Flour Mill Limited, the Supreme Court held that the doctrine of
vicarious liability provides that an employer is vicariously liable for[11]:

i.
Wrongful acts of an
employee authorized by the employer.

ii.
A wrongful manner by an
employee in carrying out acts authorized by an employer[12].

iii.
Acts which, if lawful,
would fall under the scope of an employee’s employment, or incidental to
discharging his duties.

iv.
Acts which a company
cannot carry out by itself but can only be carried out by its employee on its
behalf.

v.
Acts of an employee,
ratified by an employer.

Flowing from the above, an
employer would be liable for any act of an employee in the course of his working
remotely, which falls under any category mentioned above, and this constitutes
a real exposure to an employer, particularly in a case of unsupervised remote
working.

Conclusion

Drawing the curtain here, the
foregoing reflects some major liability concerns of an employer in the face of
its employees working remotely during, and in the wake of the covid-19
pandemic.

[1] Section 2.1 (1) (d) Nigeria Data Protection Regulation 2019

[2] Section 2.6 Nigeria Data Protection Regulation 2019

[3]Section 1 (a) Employees Compensation Act (“ECA”), 2010

[4] Section 7 (1) ECA (Supra)

[5] Section 8 (1) (a) ECA

[6] Section 8 (2) ECA

[7] Section 15 Labour Act Cap L1, Laws of the Federation of Nigeria
2004

[8] Section 17 Labour Act (supra)

[9] Ifeanyichukwu (Osondu) Co
Ltd v Saleh Boneh (Nig) Ltd [2000] 5 NWLR (pt. 656) 322; (2000) 3 S.C 42

[10] Nduka
v Ezenwaku [2001] 6NWLR (Pt. 709) 494 ; Black’s Law Dictionary,

[11] R.O Iyere v
Bendel Feed and Flour Mill Limited 2008 7-12 SC 151; SC 309;

(2008) 18 NWLR (Pt. 1119) 300 S.C; (2008) LPELR- 1578 (SC)