As the name would suggest, maternity leave is usually granted to women who give birth. This is a period for them to bond with their babies or recover from the rigours of childbirth. Nigerian law recognizes the concept of maternity and provides for 12 weeks of maternity for all employees. In recent times, the Federal Government of Nigeria has increased maternity leave for its employees to 16 weeks.
However, the law provides for 12 weeks, and most private establishments stick to this.
The issue has never been about whether maternity leave is provided for in Nigeria, but, rather, it is whether maternity leave is annual leave consuming. In other words, can an employee take maternity leave and her annual leave in the same year?
Legal Framework
Nigeria’s principal employment and labour law legislation remains the Labour Act. However, the Act is limited in application as by virtue of section 91 it only applies to those defined as workers. Workers will typically be blue-collar workers and therefore its provisions do not apply to white-collar workers.
The non-application to white-collar workers has its limitations as where the word “worker” is used, that section will only apply to workers but where the word “any person” is used, then it has universal application and will thus apply to blue-collar and white-collar workers in equal measure.
Maternity leave
Maternity leave is provided for in section 54 of the Labour Act. By the provisions of the said section 54, every woman who provides medical evidence of the due date is entitled to leave her work for 12 weeks.
The section further provides that any woman who has worked for at least six months prior to her confinement shall be entitled to at least 50% of her monthly wages for the period of her confinement.
The rationale for maternity leave is to give women time to recover from the rigours of childbirth and time to bond with their new baby(s) as well as time to make arrangements for their care before returning to work.
Annual holiday
With respect to annual holidays, section 18 of the Labour Act provides that every worker shall be entitled to at least 6 days paid leave after twelve months of continuous service and that this holiday can be deferred by agreement.
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The provision on leave does not allow for exclusion and the only qualification for holidays is continuous service for 12 continuous months.
Holiday by its very nature is a benefit in personam and each employee accrues a certain number of days for every month of service completed.
The rationale for granting annual holidays is for employees to take some time off work after a continuous period of work. Indeed, there are also health and safety considerations that drive the need for annual leave.
Is maternity leave annual holiday consuming?
Over the years there has been some sort of confusion as to whether an employee can go on maternity and annual leave in the same year. In other words, does maternity leave subsume annual leave?
In practice, many organisations have clauses in their handbook along the lines of “maternity leave is annual leave consuming”. It is difficult to trace the origin of this concept but the question really is whether there is a legal basis for this.
In a report “Maternity Entitlements in Nigeria: Policies and practices” co-authored in 2019 by the federal ministry of health, UNICEF and the NGO Thrive to Live, it was discovered that a lot of private establishments either had provisions that maternity leave was annual leave consuming or did not allow employees to take maternity and annual leave in the same calendar year.
From a legal point of view, both benefits are distinct and the conditions for applicability are different.
Annual leave/Holiday is provided for in section 18 of the Labour Act and the basis of earning the holidays is tied to an employee’s length of service. Therefore, where an employee has worked for a continuous period of 12 months, such an employee is entitled to some time off with pay. The obligation is mandatory and the only proviso or exclusion is that the employer and employee may agree to defer the holidays but such deferment period must not exceed 24 months.
Maternity leave, on the other hand, is provided for under section 54 of the Labour Act and applies only to women who have submitted a medical report indicating their expected due date. The section is very clear that every woman who provides such medical evidence is entitled to 12 weeks of maternity leave regardless of the length of service. It means that an employee can resume work and proceed on maternity leave the next month.
From a legal point of view, both benefits are distinct and the conditions for applicability are different.
It is also important at this point to draw a distinction between maternity leave and maternity pay. Whereas maternity leave accrues to every employee, maternity pay applies to only employees that have completed at least six months of service.
By the wording of sections 18 and 54, there are no exclusion clauses meaning that the application of one does not lead to the exclusion of the other.
Therefore, it is clear that the intention was for both benefits to run independently.
Section 18 is strictly concerned with earned annual holidays with pay whereas section 54 is concerned with leave for employees who provide evidence of confinement and can be with or without pay.
In interpreting statutes, the first rule of interpretation is the literal rule which means that statutes must be interpreted literally. In the literal rule of interpretation, the courts are required to observe the ordinary and natural meaning of words and interpret the phrase or words as it is. Judges are not required to add words or modify meaning and they must observe the actual intent of the legislature. It is the safest rule of interpretation.
If the intention was that one should consume the other, then such exclusion would have been expressly provided for in the legislation. In both sections, the use of the word “shall” means that the obligations are mandatory.
Based on the above, therefore, it is clear that there is no legal basis for reading into the application of both benefits an exclusion that does not exist and was not the intention of the legislature.
To put this position in perspective, it is important to draw from what is obtainable in other jurisdictions. In the United Kingdom, under the Employment Rights Act, a woman on maternity is entitled to her earned annual leave and continues to accrue holidays while on maternity leave.
The Ghanian Labour Act 2003 on its part provides that any woman on maternity leave is entitled to be paid her full remuneration and other benefits to which she is otherwise entitled. Entitled benefits include earned annual holidays.
In South Africa, section 20 of the Basic Conditions of Employment Act is drafted in a similar language to section 18 of the Nigerian Labour Act. In its application, it is deemed that annual holidays continue to accrue and annual holidays are not subsumed by maternity leave as there are no exclusions.
Finally, subsuming annual holidays under maternity leave can be viewed as a deprivation of earned benefits and may also be seen as discriminatory as it only affects women. The question will then be “ will men who take paternity where it is available be made to forfeit an equivalent portion of their annual leave or will the paternity leave be seen as an additional leave”?
From a best practice point of view, ILO convention 183 Maternity Protection Convention in article 9 provides that each member state shall provide measures to ensure that maternity does not constitute a source of discrimination.
Depriving women of earned annual leave because of maternity leave, quite apart from this position not being supported by statute, could be termed a discriminatory practice.
Practical reality
Whilst the position of the law is that both benefits are independent of each other, we must not lose sight of the likely impact on manpower planning and the attendant cost to the employer.
A practical approach will be for employers to take advantage of section 18 (2) of the Labour Act which provides that an employer and employee can agree to defer the annual holidays provided that such deferment does not exceed 24 months.
This is an approach that is not only practical but a win-win situation for both the employer and the employee.
Oseinoma Okpeku is a Partner in the Law Crest LLP and Chairman, the Nigeria Bar Association Section on Business Law Employment and Industrial Relations Committee.
