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Legality of employers’ demand for payslip during recruitment process

Legality of employers’ demand for payslip during recruitment process

Remuneration is at the core of any employment contract because it is viewed as a reward for work done, also for its integral role in sustenance and in payment of bills especially, in a country like Nigeria where citizens benefit little or no welfare package from the government.

Grosso Modo, under employment law, remuneration is also viewed as a seal of any contract of employment, which is contained expressly in Section 1 of the Labour Act. The demand for pay slip from prospective employees by employers during job recruitment processes is an emerging norm gaining much traction particularly in the field of human resource. The rationale behind the request for pay slip is that employers use pay slip to gauge one’s market value because it gives them a sense of one’s salary expectations, which places employers on a higher pedestal whenever the interview tilts towards remuneration.

Though in certain occasions, employers are given lower bargaining power in cases where the prospective employee earned more in his previous employment, the prevailing attitude of employers has been to use a prospective employee’s pay slip as a precedent or benchmark for his earning, notwithstanding that a salary range has initially been earmarked for that job position. While these practice qualifies as being unethical and demeaning, its legality under Nigerian Labour Law is unknown as the existing labour legislations are archaic and long overdue for repeal.

Pay slip according to Collins English Dictionary is a piece of paper given to an employee at the end of each week or month, which states how much money he or she has earned and how much tax has been taken off. This implies that the underlying disposition towards information of this nature is that such should be treated with utmost confidentiality and privacy as guaranteed under Section 37 of the 1999 Constitution of the Federal Republic of Nigeria. The knowledge about a prospective employee’s earnings is irrelevant during recruitment process particularly at the interview stage because before an employment contract crystallizes, the building blocks under the law of contract applies which is inclusive of offer, acceptance, consideration, capacity, and intention to create legal relations. The ultimate concern and skill to be displayed by both parties at that stage should be negotiation as both parties are placed on a levelling playing ground with each party attempting to arrive at a compromise.

Living in this part of the world particularly Nigeria is fraught with several odysseys as labour is often seen as a cheap commodity and unfair labour practices such as casualization of labour is the prevalent culture in employment relations. Hence, creating an enabling environment where employers are in a position to short-change their employees in the guise of profit maximization and current economic realities. The request for pay slip is a rather unnecessary and cumbersome exercise because every vacant position being sought to be filled in any organization has an existing payment benchmark, which should be thrown open for negotiation, acceptance or rejection to the prospective employee. It is in this vein that it can be argued that a contract is legal once it constitutes the building blocks of a contract and is devoid of undue influence, fraud, or duress. Pointing this out implies that no consent to a contract of employment arrived at on a payslip precedence especially when what is ordinarily paid for such position is slashed, should be declared void as this is the logical reasoning under the law of contract.

The request for pay slip is a rather unnecessary and cumbersome exercise because every vacant position being sought to be filled in any organization has an existing payment benchmark

Personal Data Breach according to Nigeria Data Protection Regulation 2019 is defined as a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed. One of the governing principles of the Nigerian Data Protection Regulation 2019, is that personal data shall be adequate, accurate and without prejudice to the dignity of human person. The 8th Sustainable Development Goal (SDG) of the United Nations which is geared towards achieving decent work by year 2030 emphasizes that every employment respects the fundamental rights of the human person, as well as the rights of workers in terms of conditions of work safety, remuneration, physical and mental integrity of the worker in the exercise of his or her employment.

Nigeria has witnessed huge scenes of flagrant disrespect of employees rights with the predominant one being Section 7 of the Labour Act which states that an employer shall not keep an employee for more than three months without the employee being issued a contract of employment. The Nigerian Labour Act, which is long overdue for amendment and review does not make any provision for emerging issues such as the request of pay slip by employers though in the United States of America, particularly in states such as Massachusetts, Maryland, Chicago, Atlanta, Alabama, California and New Jersey but to mention a few have enacted laws prohibiting employers from screening applicants based on their pay history.

Read also: Achieving decent employment in Nigeria through fiscal and monetary policies

According to a recent report by the Socio-Economic Rights and Accountability Project (SERAP), 27.4 million Nigerians earn below N100,000 per annum, which represents 48.9 percent of persons living in poverty while 10.7 per cent earned between N201,000 and N300,000 and 12.5 per cent earned more than N300,00 per annum. This implies that the continuous use of pay slip will further encourage unfair labour practices and hamper the attainment of decent work by year 2030. The ugly scenes of inflation, insecurity, erratic power supply and unstable forex market has constituted huge hindrance to foreign participation in terms of foreign direct and portfolio investments, which has adversely affected the means of survival of the populace and earnings of government. Regulation 2.3 of the Nigeria Data Protection Regulation 2019 emphasizes the procurement of real consent from the data subject stating without prejudice the withdrawal of consent to use such data.

Realistically, pay slip which qualifies as a confidential document despite being presented by employers as a voluntary demand comes with it a subtle coercion, which impliedly means that refusal to present it means an automatic disqualification. Recruitment process should be in accordance with Regulation 2.9 of the Nigeria Data Protection Regulation 2019, which extends such right in order to guarantee the provisions of Chapter 4 of the 1999 Constitution of the Federal Republic of Nigeria. While other climes are evolving in labour legislations, Nigeria must as a matter of necessity stop the unfair and adverse usage of pay slips during recruitment process as such act will encourage sharp practices and further quibble the standard of living of millions of Nigerians.

The incessant and unapologetic failure of successive Nigerian governments to ensure the justifiability of Chapter 2 of the 1999 Constitution on fundamental objectives and directive principles of state policy particularly Section 17(3)(a)(b)(c), which states; the government shall direct its policy towards ensuring that conditions of work are just and humane and the non-standardization of work pay over the years coupled with the absence of enforcement of the existing labour legislations have opened the floodgates of exploitation and slavery in disguise of corporate wears under Nigerian employment relations. Living in Nigeria can be akin to survival in the jungle, which depicts toughness and unfair sharp practices should not be harboured in any way. The platform for redress under Regulations 2.10 and 4.2 should serve as an elixir to aggrieved parties who have been short-changed based on their pay history in their previous employments because ubi jus ibiremedium meaning when there is a right, there is a remedy. The National Industrial Court in line with the sociological school of jurisprudence must begin to evolve its decisions in the light of current realities in order to create an egalitarian society for all.

Daramola is a lawyer who wrote from Lagos. [email protected]