Employer, Employee, Privacy et al- Blurring the lines
By Aderemi Durojaiye, FCIArb
I recently saw a post about a Japanese company’s policy to its staff to refrain from smoking during working hours at home. The write up referenced a number of opinions attributed to lawyers in various jurisdictions on the subject. The key issue being: Whether an employer has the right to dictate what an employee does at home? This would typically have been a simple answer: ‘No’. However, things are not so simple these days. To start with, the pandemic has changed how we work. The workplace has gradually become more virtual or a hybrid, and the lines between rights of employers and employees now have to be subjected to more analysis to determine contractual obligations.
The question one may ask is what difference would it make if an employee played soccer at home or binged on an interesting series all week, provided he/she delivered on KPIs? Or why would an employee be expected to refrain from smoking at home during work hours? Whilst one may argue on how to enforce such a rule, it is better to focus on the caveat: ‘during work hours’.
As it is trite in employer/employee contractual relationships, the employee is expected to discharge his/her duties and comply with all the terms of his/her employment. It is also the responsibility of the employer to provide work  to the employee and determine what needs to be done.
The Employer’s Investment
Generally, employers describe their employees as the biggest asset of the company. Considering the training, renumeration and allowances, Group insurance cover and other incentives, it is clear that any employer with focus on sustainability and growth would typically invest in its staff. All assets need to be protected jealously. To this end, an employer may diversify portfolios, hedge against inflation, insure against risk, death and damage or subject an asset to one form of securitization or another. In the same vein, the employee, being a critical asset in a company, should be of primary concern to the employer. As such, whilst employment contracts usually focus on work circumstances, the lifestyle of an employee which may pose a loss to the employer will most likely attract the employer’s attention. In a 92-page Report by World Health Organisation and the International Labour Organisation, data from 183 countries showed diseases and deaths from occupational/work related issues. With the world becoming a continually-shrinking-on-an-ongoing-basis global village, companies need to focus on sustainable development goals from a point of view of responsible behaviour and also to promote healthy living. A defining paragraph in the Report reads thus:
‘’Nobody should get sick or die from doing their job. And yet every year, 1.9 million people die from exposure to risk factors in the workplace. The 2030 Sustainable Development Goals (SDGs) aim “to ensure healthy lives and promote well-being” and “decent work” for all people, whatever their economic or social status’’
Having said that, an employer should take more than a passing interest in the lifestyle of its employees at least as far as healthy living is concerned.
Where is my workplace?
Historically, workplace comprises a physical location from where an employer provides work to be done. These are areas where the employer maintains some control or at best has full responsibility for the employee in such a location.
With the advent of technology, work has since moved from a single location to multiple locations (work can be carried out simultaneously from physical and virtual workspaces). The transition for many companies, arising from the impact of the COVID-19 pandemic, has seen some workplaces now become fully virtual at least in the past 16-18 months or moved to the home of the employee which used to be strictly a private enclave. It is then understandable that such a workplace with operations from the employee’s home with virtual access to the employer’s intranet now poses an interesting discourse on the traditional rights and obligations of the employer and employee.
- How secure is the physical work environment?
- How secure is the internet service subscribed to by the employee in accessing digital platforms of the employer?
- Confidentiality of office information.
- Safe work habits and lifestyle of the employee.
As the workplace continues to move deeper into the home space, the working conditions imposed by an employer in the office may gradually extend to the home. A rude awakening and a disturbing one except lines are clearly delineated.
Can I Smoke?
As absurd as this may sound, it will generate different responses when viewed within the following context:
To an Employee
- Will consider it discriminatory for sanctions to be applied against him/her on the basis that he/she smokes. If he/she cannot be denied a job on the ground that he/she smokes, why would he/she then have such habit curtailed by his/her employer.
- Freedom of choice- The fact that an employer frowns on smoking does not preclude an employee from doing so. How free is this choice when considering public health and safety? It does come at a priceas enshrined in Nigerian law.
- Right to privacy- To smoke within the confines of the employee’s home should not be of concern to a third party. Or should it? There are restrictions on smoking in private places subject to required designation and safety measures such as smoke detectors. In any event, such an activity carried on in private should not interfere with the private rights of a neighbour and thereby constitute a nuisance. Even in the workplace, it is not out of place to have designated smoking areas within the workplace and as such, employees are free to limit their activity to those areas. Now what then happens where the workplace is at the employee’s home?
To an Employer
- Whilst the employee is entitled to explore his personal habits in private, where those habits put the employee in breach of applicable laws, then the employer will be concerned. This is more so where such infraction of the law becomes public knowledge and trends on social media in a manner that causes an embarrassment to the employer.
- If you are not allowed to smoke during work hours then where such work hours are observed at home, the rule may still apply. Whilst it may be difficult for the employer to monitor this, it does serve to highlight that irrespective of its remoteness, the rule may still be enforced.
- To protect and preserve the employer’s key asset– We have identified with the fact that employees are a very important asset in any organisation. As such, in the same way that the employer invests funds in training the employee, it expects that the employee will not do anything to impair such a key asset such as indulging in a health-impacting activity. It also becomes more critical where the employer notes that health issues (which may arise from smoking) can impact on health insurance premiums for staff or cause extended time away from work.
As we continue to navigate changing narratives from the effect of the COVID-19 pandemic, it is clear that questions which would have elicited a ‘Not Possible’ response now border on ‘Now Probable’. There is a need to realise that privacy continues to be qualified by the public good. The lines continue to blur and parties concerned will do well to ensure that they delineate those lines as much as possible to maintain a balance and take note of their respective rights and responsibilities.
Aderemi Durojaiye, FCIArb
Partner, Kairos & Saige Solicitors
NB: The content of this article is for information purposes only and does not serve or should not be construed as a legal opinion or advice. Please seek legal opinion from your solicitors on such matters as you may require.
 Aderemi Durojaiye is a Partner at Kairos & Saige Solicitors.
 Nomura, a brokerage firm based in Japan.
 For example, privacy of the employee can be impacted as the said employee now needs to ensure that the workspace at home assumes a more professional look in order to attend virtual video meetings.
 Key Performance indicators.
 This write up is written from the context of Nigerian statute and case law. It should also be noted that Nigerian labour practices are also subject to established principles and global best practices as defined by the International Labour Organisation. See Section 7 of the National Industrial Court Act, 2006. Other key legislations include the Trade Unions Act, CAP T14 Laws of the Federation of Nigeria, 2004; Labour Act CAP L1, Laws of the Federation of Nigeria, 2004; Constitution of the Federal Republic of Nigeria, 1999 (as amended).
 Section 17, Labour Act, CAP L1, Laws of the Federation of Nigeria, 2004.
 WHO/ILO joint estimates of the work-related burden of disease and injury, 2000-2016: global monitoring report: Geneva: World Health Organization and the International Labour Organization, 2021.
Also available at: https://www.ilo.org/wcmsp5/groups/public/@ed_dialogue/@lab_admin/documents/publication/wcms_819788.pdf
 The United Nations Organisation promotes a series of goals (called Sustainable Development Goals- SDGs) to be achieved by 2030 in a bid to have a better, safer and healthier environment for all. Countries are expected to play active roles in ensuring these goals are achieved and in the same context, companies will do well to consider these SDGs in their internal policies for the overall benefit of all.
 WHO/ILO joint estimates of the work-related burden of disease and injury, 2000-2016 (Supra) at page 7.
 Field work or any series of work-related activity instructed by an employer gives rise to obligations to be borne by the employer even where there is no physical control of such environment. In this regard, an employee in transit for a business engagement will apply.
 Some States in the US have legislation which protect against discriminating against persons who smoke.
 Sections 8 & 9, National Tobacco Control Regulations, 2019 which impose punishment of fines and imprisonment. The regulations are made pursuant to the powers of the minister for Health under Section 39(1) of the National Tobacco Control Act, 2015.
 Section 4 of the Lagos State No Smoking law, 2014 provides that an employer may designate a section within the workplace as Smoking Area. The legislation also provides for the placement of ‘No Smoking’ signs in general areas.
 This also includes physical assets such as a laptop, a key asset, which may be damaged by tar or dust can clog-up its cooling system.
 Right to privacy is guaranteed under Section 37 of the Constitution of the Federal Republic of Nigeria, 1999.
 For example, whilst there is a right to own property under Nigerian law, such property may be acquired (subject to compensation) by the government for a public good such as to establish a hospital.