Refusal to interview Applicant in Hijab was Discriminatory, Justice Nweneka Rules

The National Industrial Court of Nigeria, presided over by Hon. Justice Ikechi Gerald Nweneka has ruled that refusal to interview an applicant in Hijab was discriminatory, violation of section 42 of the Constitution of the Federal Republic of Nigeria 1999.

This was the ruling in a judgment in Lagos, on Tuesday 8th January 2019.

Facts

The Applicant Olatunji Hawau had applied for employment with the 3rd Respondent, Federal Medical Centre Ebute Meta on 10th October 2016. She was invited for interview on 12th October 2016 but was not interviewed at the instance of the 1st Respondent because she was wearing a hijab hence this application.

Preliminary objection 

The 3rd Respondent raised a preliminary objection to the suit urging the Court to strike it out for want of jurisdiction on the grounds that there is no employment relationship between the Applicant and the Defendants/Respondents.

In response to the preliminary objection, claimant argued that employment rights are sui generis and we have pre-employment and post-employment rights; and a prospective employee’s pre-employment rights will be violated when an applicant is treated differently or discriminated against as a result of her sex, ethnic background or religious beliefs and referred to sections of the Constitution.

Learned Counsel submitted that by virtue of section 254C of the Constitution this Court has unfettered jurisdiction to hear fundamental rights violations relating to labour and employment matters and urged the Court to dismiss the preliminary objection.

Dismissing the preliminary objection for lacking merit the Court expressed thus;

“I agree with the submission of learned Counsel for the Applicant that by virtue of section 254C[1][d] and [g] of the Constitution, this Court is imbued with power to adjudicate on pre-employment matters.

The main judgment

“It seems to me that upon being shortlisted and invited for interview, and presenting herself for interview, the Applicant was entitled to be interviewed; whether she gets the job or not is a different kettle of fish.

“It accordingly becomes discriminatory when the Applicant waited with others invited for the interview but for no plausible reason, except for her dressing which is in accord with her religious belief and practice, she was denied the opportunity to be interviewed and asked to leave the venue of the interview.

“Having invited her for the interview, the 3rd Respondent could not without sufficient cause shown exclude her from the interview. For this reason, the argument of learned Counsel for the 3rd Respondent that if the Respondents “intended to discriminate based on her dressing [they] would certainly not have invited her to the interview in the first place” is self-defeating.

“Undoubtedly, the 3rd Respondent has by its action infringed on the Applicant’s fundamental rights enshrined in the above sections of the Constitution. These rights are not cosmetic but are the pivot of existence of citizens.

“Conducting interviews for prospective employees is the prerogative of the management of the 3rd Respondent and purely an administrative process which this Court cannot interfere with.

“On the whole, while the facts of this case may be a ground for award of damages which has not been claimed, it certainly cannot be a ground for issuance of the prerogative writs of certiorari and prohibition.

“It is hereby declared that the refusal of the 3rd Respondent to interview the Applicant only because she put on her hijab is discriminatory and a violation of section 42 of the Constitution of the Federal Republic of Nigeria 1999 [as amended].” His Lordship stated.

Read full judgment: http://judgement.nicnadr.gov.ng/details.php?id=3113


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