Compulsory Break Time for Nursing Mothers During Work

Compulsory Break Time for Nursing Mothers During Work

Daily Law Tips (Tip 828) by Onyekachi Umah, Esq., LL.M, ACIArb (UK)

1. Introduction:

There is often a cold war between employers and their workers over work time management. It gets worse when workers are nursing mothers, and employers are primitive and against technologies that promote hybrid work solutions.

While workers in Nigeria are often maltreated and cheated on work time, most employers may not know they are committing federal offences. The maltreatment of women and nursing mothers at work is part of the rising Non-Sexual Gender-Based Violence and Harmful Practices faced by women in the workplace.

This work focuses on the statutory work time and breaks for nursing mothers during work time and also the ordinary break time for all workers. It covers all forms of employment in all parts of Nigeria. By the way, it starts with defining a nursing mother and a child.

2. Who is a “Nursing Mother” and a “Child”?

Permit me to start with a short background. In a religiously pretentious country like Nigeria, it is usual to hear about legitimate and illegitimate children, legitimate motherhood, and sinful motherhood. The distinction accounts for the many employers and their often legally illiterate human resource staff that are often selectively sanctimonious in recognising mothers and their nursing rights.  Fortunately, Nigeria’s courts rely on laws and not a religion and social sentiments.

While the Labour Act does not define the term “nursing mother”, the Cambridge Dictionary defines a “nursing mother” as “a mother who is feeding her baby with her own breast milk”.  So, a nursing mother is a woman that feeds her baby with her mammary gland. And a nursing mother is a breastfeeding mother. Yes, that is the simple definition, as I will never bore you with legal or medical jargon. A nursing mother does not need to have been married. A nursing mother does not need to know the father of her child or have a husband. And no sane employer has any business with such issues.

Going by the above definitions drawn from the Labour Act and the English dictionary, it seems that the law does not include mothers that are not breastfeeding as nursing mothers. In reality, there are mothers that could, by choice, medical reasons or even the choice of their babies, feed their babies with alternatives to breast milk. Also, the definition does not seem to cover women that could be breastfeeding babies that are not their biological children. Well, advancement in medicine and social reconfigurations requires the Labour Act to be expanded to cover more persons.

The labour law expressly provides that the break for nursing mothers covers legitimate and illegitimate children. Presently, there are no illegitimate children in Nigeria. By virtue of the Constitution of Nigeria, all persons and children in Nigeria are deemed legitimate children of their parents (irrespective of the discriminatory “theories of out-of-wedlock”). Marriage is no basis for the legitimacy of a child, and birth is no basis for discrimination. Hence, Nigerian laws have no room for the foolish dichotomy between legitimate motherhood and illegitimate motherhood.

3. Minimum Break time for Nursing Workers:

The manner and form in which nursing mothers are often treated by employers and human resources advisers in organizations make one wonder if giving birth and breastfeeding is a punishment. While the World Health Organization promotes exclusive breastfeeding, most employers in Nigeria are combating exclusive breastfeeding by punishing breastfeeding workers. Employers expressly or by conduct push nursing mothers to dump their babies in care homes and consequently truncate breastfeeding.

The sufferings of nursing workers in Nigeria often start with the refusal and failure of employers to allow nursing mothers to enjoy their maternity leave. The sufferings also include the refusal and failure of employers to provide for:

1. Safe and secure environment for babies
2. Adequate time for breastfeeding
3. Safe environment and privacy for breastfeeding
4. Baby friendly policies

The Labour Act 1971 (a federal law on employment) clearly provides for nursing workers in the workplace. The provisions of the law prevail and supersede any oral or written agreement, policies, guidelines, directives and even international programmes of any employer (organisation) in Nigeria. Hence, no organisation in Nigeria (whether registered in Nigeria or outside Nigeria) is permitted to amend or modify the provisions of any law in Nigeria, including the Labour Act. Hence, the provisions of the Labour Act on the minimum break time for nursing mothers during work hours are compulsory and cannot be reduced by any organization, rather can be increased.

Having laid the above foundation, let us now discuss the minimum break time for nursing mothers in Nigeria. The Labour Act provides that a nursing (breastfeeding) mother is entitled to a total minimum of one hour a day for breastfeeding her child. This break is apart from the normal breaks that every other worker gets. So, it is an extra break period for nursing mothers.

It is important to note that ahead of the provision of the one-hour break time for breastfeeding workers, the Labour Act also provides a compulsory break period of one hour for all workers (including male and female workers that work for at least six hours in a day). Also, the provision of one hour for nursing does not invalidate the break time of one hour already provided for all workers. Hence, nursing mothers are entitled to a total break time of two hours a day (one hour break for all workers and another one hour for only breastfeeding workers). So, says the law. For more on the one-hour break for all workers, see my work titled; “Minimum Break Time for Workers” accessible via; https://sabilaw.org/minimum-break-time-for-workers/.

4. The Punishment for Violating the Break time of Nursing Mothers:

Expectedly, some employers and human resources staff (mostly men) feel that the general break time for nursing mothers is too much. While most persons are scared of criminal laws because of the punishments that follow them, many employers seem not to be scared of the Labour Act because they are unaware of its criminal sanctions (punishments). A violation of the provisions of the Labour Act could be punished with imprisonment and or fines.

Where an employer denies a nursing worker the mandatory one-hour break in a day for breastfeeding, it is a federal offence, and it is punishable with a fine of not more than Two Hundred Naira or imprisonment for not more than three (3) months or both. Since the monetary punishment is too poor, looking at the age of the law, most judges may only offer imprisonment without the option of a fine.

Furthermore, where an employer (or any staff of the employer) denies a nursing mother or any worker the normal break time of one hour a day, the employer has committed an offence. It is an offence punishable with a fine of the sum of Eight Hundred Naira (N800.00) for a first-time offender, and the fine for a second-time/subsequent offender is the sum of One Thousand Naira (N1,500.00).

It is common to find overzealous, busybodies and wicked human resource staff of employers delighted to violate nursing mothers’ rights. Such human resource staff may even perpetrate such crimes without the employer’s knowledge. Well, the Labour Act permits an employer to drag to court any person (including the often-lawless human resource experts) that actually the employer believes is the actual offender. Where the employer proves that it was diligent in observing the provisions of the law on breaks but that it was that other person (worker) that, without the consent of the employer, violated the law, the court will hold the person liable and then exempt the employer.

5. Legal Remedies for offended breastfeeding workers:

Where there is a right, there is a remedy. Hence, the existence of the Labour Act and the rights bestowed on nursing mothers means that where there is a violation, there is a remedy. Hence, breastfeeding workers that are being maltreated and denied their statutory rights to one hour for breasting feed and another one hour for a break have huge legal remedies.

 A nursing mother whose breastfeeding time and break time are being violated needs to speak to a lawyer. The violation could be that the breaks are reduced or removed or that the nursing mother is forced to spend them in the workplace. An experienced lawyer will assess the situation and could send a warning letter to the employer or head straight to the courts.

The lawyer could also advise the nursing mother to institute legal action against the employer, the human resources staff and any other staff of the employer that has played a role in the violation. The lawsuit could seek huge financial damages running into millions of Naira under the law of tort.

There could also be a lawsuit under the fundamental human rights enforcement proceedings for the violation of the right to dignity of human persons of the breastfeeding worker and her child. It could further be stretched to include a claim of violation of the right to life, and the right to freedom of thought, conscience and religion. Where the employer is causing discrimination against nursing mothers that have no husbands (children without known fathers), the case could also contain a claim for the violation of the right to freedom from discrimination.

The criminal aspect of the violation of the labour rights of a nursing mother (breastfeeding worker) could be reported to law enforcement agencies and the labour office for the criminal prosecution of the employer and his conniving staff. Where the employer is an international organisation or has international interests, an experienced lawyer could devise good channels to engage the international community and the parent organs of the employer. An organisation is as good as it treats its workers.

Relevant institutions to speak to for justice, including the Ministry of Labour, the Ministry of Justice, the National Industrial Court, the High Courts in States across Nigeria, the National Human Rights Commission and Non-Governmental Organizations, like Sabi Law Foundation (www.SabiLaw.org)

6. Conclusion:  

Ignorance of law is not an excuse. Hence employers, human resources staff and all human beings must strive to “Sabi Law” (learn law) and avoid legal disputes. Breastfeeding workers (nursing mothers) in any part of Nigeria have a cumulative two (2) hours break in a day in line with the Labour Act. No employer can change or modify this except as may be allowed by the Labour Act. The agreements, directives, policies, manuals, guidelines and rules of an employer (including international organisations) and institutions cannot change the laws of Nigeria, rather must respect the laws or be dead. So, says the law. It is always better to employ lawyers as human resource staff or engage an experienced lawyer that will often advise human resource staff to avoid attrition and huge loss of revenue.

References:

1. Sections 1, 2, 3, 4, 5, 6, 7, 33, 34, 38, 42(2), 318 and 319 of the Constitution of the Federal Republic of Nigeria, 1999.
2. Sections 13, 21, 22, 54 (1)(d),54(5) and 58 of the Labour Act, 1971
3. Onyekachi Umah, “Minimum Break Time for Workers” (SabiLaw.org, 11 November 2022) <https://sabilaw.org/minimum-break-time-for-workers/> accessed 11 November 2022
4. Onyekachi Umah, “Stripping and Flogging of Workers in Nigeria” (SabiLaw.org, 24 May 2022) <https://sabilaw.org/stripping-and-flogging-of-workers-in-nigeria/> accessed 11 November 2022.
5. Onyekachi Umah, “Details of State Offices of National Human Rights Commission” (LearnNigerianLaws.com, 27 October 2020) <https://sabilaw.org/details-of-state-offices-of-national-human-rights-commission/> accessed 14 May 2021
6. Onyekachi Umah, “Places, Workers Cannot Be Paid Salaries In Nigeria” (LearnNigerianLaws.com, 27 February 2019) <https://sabilaw.org/daily-law-tips-by-onyekachi-umah-esq-tip-277-places-workers-cannot-be-paid-salaries-in-nigeria/ > accessed 23 May 2021
7. Onyekachi Umah, “It Is Illegal For Workers To Be Told Where And How To Spend Salaries” (LearnNigerianLaws.com, 20 February 2019) <https://sabilaw.org/daily-law-tips-by-onyekachi-umah-esq-tip-272-it-is-illegal-for-workers-to-be-told-where-and-how-to-spend-salaries/ > accessed 23 May 2021
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9. Onyekachi Umah, “Fines And Deductions From A Worker’s Salary Are Illegal” (LearnNigerianLaws.com, 15 July 2020) <https://sabilaw.org/fines-and-deductions-from-a-workers-salary-are-illegal-daily-law-tips-tip-610-by-onyekachi-umah-esq-ll-m-aciarbuk/ > accessed 23 May 2021
10. Onyekachi Umah, “Sacking Of A Private Sector Worker With Or Without Reason” (LearnNigerianLaws.com, 8 May 2020) <https://sabilaw.org/sacking-of-a-private-sector-worker-with-or-without-reason-daily-law-tips-tip-565-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 23 May 2021
11. Onyekachi Umah, “Can Workers Be Paid Salaries With Relief Materials And PPES?” (LearnNigerianLaws.com, 17 April 2020) <https://sabilaw.org/can-workers-be-paid-salaries-with-relief-materials-and-ppes-daily-law-tips-tip-550-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 23 May 2021
12. Onyekachi Umah, “Duration Of Sick Leave With Pay In Nigeria” (LearnNigerianLaws.com, 24 March 2020) <https://sabilaw.org/duration-of-sick-leave-with-pay-in-nigeria-daily-law-tips-tip-532-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 23 May 2021
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14. Onyekachi Umah, “List Of Things That Must Be In An Employment Letter/Agreement” (LearnNigerianLaws.com, 28 January 2020) <https://sabilaw.org/list-of-things-that-must-be-in-an-employment-letter-agreement-daily-law-tips-tip-492-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 23 May 2021
15. Onyekachi Umah, “Oral Employment Agreement Is Illegal In Nigeria” (LearnNigerianLaws.com, 23 January 2020) <https://sabilaw.org/oral-employment-agreement-is-illegal-in-nigeria-daily-law-tips-tip-489-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 23 May 2021
16. Onyekachi Umah, “DEDUCTION OF INTERESTS, DISCOUNTS AND SIMILAR CHARGES FOR “SALARY ADVANCE” IS ILLEGAL” (LearnNigerianLaws.com, 20 September 2019) <https://sabilaw.org/deduction-of-interests-discounts-and-similar-charges-for-salary-advance-is-illegal-daily-law-tips-tip-418-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 23 May 2021
17. Onyekachi Umah, “WHEN IS IT ILLEGAL FOR A WORKER TO DEMAND OR BE PAID “SALARY ADVANCE” (LearnNigerianLaws.com, 4 September 2019) <https://sabilaw.org/when-is-it-illegal-for-a-worker-to-demand-or-be-paid-salary-advance-daily-law-tips-tip-407-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 23 May 2021
18. Onyekachi Umah, “COMPULSORY PERIOD OF GRACE BEFORE EMPLOYER CAN DEMAND RECOVERY OF SALARY ADVANCES IN NIGERIA” (LearnNigerianLaws.com, 26 August 2019) <https://sabilaw.org/compulsory-period-of-grace-before-employer-can-demand-recovery-of-salary-advances-in-nigeria-daily-law-tips-tip-399-by-onyekachi-umah-esq-llm-aciarb-uk/> access 23 May 2021
19. Onyekachi Umah, “IT IS ILLEGAL TO PAY A WORKER MORE THAN 1 MONTH ADVANCE IN NIGERIA” (LearnNigerianLaws.com, 5 July 2019) <https://sabilaw.org/it-is-illegal-to-pay-a-worker-more-than-1-month-advance-in-nigeria-daily-law-tips-tip-367-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 23 May 2021
20. Onyekachi Umah, “PLACES, WORKERS CANNOT BE PAID SALARIES IN NIGERIA” (LearnNigerianLaws.com, 27 February 2019) <https://sabilaw.org/daily-law-tips-by-onyekachi-umah-esq-tip-277-places-workers-cannot-be-paid-salaries-in-nigeria/> accessed 23 May 2021
21. Onyekachi Umah, “IT IS ILLEGAL FOR WORKERS TO BE TOLD WHERE AND HOW TO SPEND SALARIES” (LearnNigerianLaws.com, 20 February 2019) <https://sabilaw.org/daily-law-tips-by-onyekachi-umah-esq-tip-272-it-is-illegal-for-workers-to-be-told-where-and-how-to-spend-salaries/> accessed 23 May 2021
22. Onyekachi Umah, “CAN A WORKER/STAFF IN NIGERIA BE PAID IN KIND INSTEAD OF WITH MONEY?” (LearnNigerianLaws.com, 9 November 2018) <https://sabilaw.org/daily-law-tips-by-onyekachi-umah-esq-tip-224-can-a-worker-staff-in-nigeria-be-paid-in-kind-instead-of-with-money/> accessed 23 May 2021
23. Onyekachi Umah, “It Is A Crime To Run Recruitment and Employment Consultancy Services Without A License In Nigeria” (LearnNigerianLaws.com, 17 August 2018) <https://sabilaw.org/daily-law-tips-by-onyekachi-umah-esq-tip-165-it-is-a-crime-to-run-recruitment-and-employment-consultancy-services-without-a-license-in-nigeria/> accessed 23 May 2021
24. Onyekachi Umah, “An Employment without a Written Employment Agreement is an Offence” (LearnNigerianLaws.com, 30 April 2018) <https://sabilaw.org/daily-law-tips-by-onyekachi-umah-esq-tip-91-an-employment-without-a-written-employment-agreement-is-an-offence/> accessed 23 May 2021
25. Onyekachi Umah, “An Alternative to Courts for Human Rights Cases” (LearnNigerianLaws.com, 14 May 2021) <https://sabilaw.org/an-alternative-to-courts-for-human-rights-cases/> accessed 23 May 2021.

Speak with the writer, ask questions or make inquiries on this topic or any other via onyekachi.umah@gmail.com, kachi@SabiLaw.org or +2348037665878 (WhatsApp). To receive free Daily Law Tips, join our free WhatsApp group via https://chat.whatsapp.com/Drc0UK3ba10KnuR8zuPMwl or Telegram group, via the below link: https://t.me/LearnNigerianLaws

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