In depth look at employment law in Zambia

1. UNIT 3:
STATUTORY RIGHTS
&
MINIMUM CONDITIONS OF
SERVICES

2. The new Employment Code Act, No. 3 of 2019
(the “Code”) attempts to consolidate and in
some respects, codify employment law
principles, thereby altering the employment
law landscape in Zambia.

3. The Code repeals and replaces the Employment Act (the
“repealed Act”), Cap 268 of the Laws of Zambia, as well
as the Minimum Wages and Conditions of Employment
Act (the “repealed Minimum Wages Act”) of 1982
notwithstanding the repealing of these Acts, all the
Statutory Instruments (the “SIs”) issued pursuant to the
repealed Minimum Wages Act (i.e. minimum wages and
conditions of employment for protected employees
such as clerks, receptionists, cleaners, guards, domestic
workers etc.) will remain in force, provided they are
consistent with the Code or until replaced with new SIs.

4. The ECA 2019 in section 5 ensures the
promotion of equality within the work place
while at the same time, eliminating all forms
of discrimination within the work place.
The Act further prohibits employers from
discriminating against either directly,
indirectly employees or prospective
employees, on the basis of:

5.  Colour, nationality, tribe or place of origin,
language, race, social origin, religion, belief,
conscience, political or other opinion, sex,
gender, pregnancy, marital status, ethnicity,
family responsibility, disability, status, health,
culture or economic grounds.
 Discrimination on the above grounds, is also
prohibited in respect of recruitment, training,
promotion, terms and conditions of
employment, termination of employment etc.

6. Section 5(4) of the Act mandates employers
to pay employees equal wages for equal
work. Somewhat vague, so what exactly does
this mean? The solution to this vagueness, is
that section 5(4) is to be read together with
section 5(2)(a) of the Act.

7. Section 95(1) of the ECA mandates
employers to put in place policies, and
procedures which deal with HIV and AIDS;
health and wellness; harassment;
performance management; grievances and
codes of conduct within the work place.
Section 95(3) mandates employers to bring
the above-mentioned policies, procedures
and codes.

8. The ECA 2019 does not define harassment
but instead makes reference to the definition
of the term, as stated in section 3 of the
Anti-Gender BasedViolence Act 2011.
The definition of “harassment” in the Anti
GBV Act 2011 is wide and caters for a wide
range of actions of a “harasser” which are
likely to also occur within the work
environment, in the same manner as they
would within a domestic setting.

9. “ Harassment ” means engaging in a pattern
of conduct that induces in a person the fear
of imminent harm or feelings of annoyance
and aggravation, including—
Sexual contact without the victim’s consent
Unwanted/unsolicitated sexual advances
towards the victim

10. following, pursuing or accosting a person or
making persistent, unwelcome
communication with a person by spying,
lurking or loitering around the victim’s place
of residence; work and business.
repeatedly making phone calls or using a
third party to make phone calls to the victim
despite the absence of a conversation.

11. repeatedly sending, delivering or causing the
delivery of offensive or abusive letters,
telegrams, packages, facsimiles, electronic
mail or other offensive objects or messages
to the victim/harassed person; or
engaging in any other menacing (bullying,
alarming, terrifying etc) behaviour.

12.  In the case of Kitwe City Council v William
Nguni (2005) ZR 57 (SC) , the Supreme Court
held that when an employee alleges harassment
and victimisation, it must be raised immediately
and not as an afterthought.
 The onus of proving harassment lies on an
employee alleging harassment. Thus he/she is
required to provide proof of such an allegation.

13. However, where an employee does not raise
a formal complaint or allegation of
harassment, and the employer has
reasonable cause to believe that such
harassment is taking place, he has an
implied duty to investigate the matter and
take action where necessary action.

14. In Reed & Bull Information Systems Limited
v Stedman (1991) IRLR 299 (EAT) it was held
that the failure by an employer to investigate
an occurrence of sexual harassment within his
establishment where such an employer has
reasonable cause to believe the same to be
occurring, amounts to a breach of the duty of
trust and confidence.

15.  Victimisation refers to the unfair and unjust
treatment of an employee for whatever reasons
such as on the basis of the employee
commencing legal proceedings against an
employer under the ECA or other legislation,
giving evidence in court proceedings in which
the employer is a party etc.
 See James Mankwa Zulu and three others v
Chilanga Cement Plc SCZ Appeal No. 12 of
2004.

16.  Section 6 of the Act ensures that employers
do not discriminate against persons with
disabilities in relation to the employability of
such persons and other matters incidental to
the same.The section does this, by pointing
employers to the relevant provisions of the
followingActs:
 The Persons with Disabilities Act 2012; and
 The Mental Health Act 2019

17.  Section 35(2) of the PDA 2012 provides that:
(2) A person with disability shall not be discriminated
against on the basis of disability with regard to all
forms of employment, including conditions of
recruitment, hiring and employment, continuance of
employment, the creation, classification and
abolition of positions, the determination of wages,
pension or other benefits, apprenticeship,
promotion, career advancement and safe and
healthy working conditions.

18. (3) Without prejudice to the generality of sub-section (1), the Minister shall, after consultation with the Minister
responsible for labour andTEVETA, issue regulations and take measures, as the case may be, to ensure the
following—
(a) the creation of a labour market and work environment that is open, inclusive and accessible to persons with
disabilities;
(b) protection of the rights of persons with disabilities, on an equal basis with others, to just and favourable
conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy
working conditions, including protection from harassment, and the redress of grievances;
(c) that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with
others;
(d) enabling persons with disabilities to have effective access to technical and vocational training and guidance
programmes, placement services and vocational and continuing training;
(e) creating and promoting employment opportunities and career advancement for persons with disabilities in
the labour market, and assistance in finding, obtaining, maintaining and returning to employment;
(f) creating and promoting opportunities for self-employment, entrepreneurship, the development of
cooperatives and starting one’s own business;
(g) employing persons with disabilities in the public sector;
(h) creating and promoting the employment of persons with disabilities in the private sector through appropriate
policies and measures, which may include affirmative action programmes, incentives and other measures;
(i) that reasonable accommodation is provided to persons with disabilities in the workplace;
(j) promoting the acquisition by persons with disabilities of work experience in the open labour market; and
(k) promoting vocational and professional rehabilitation, job retention and creating return-to-work programmes
for persons with disabilities.

19.  While the old Employment Act Cap 269 of the laws of
Zambia did not outlaw casualization, the Employment
Code in section 7 unequivocally bans the practice of
casualization.
 This development means that all other obligations
that come with having employees on fixed term
contracts or permanent contracts become part of the
costs that the employer will have to meet in respect of
these workers: Social security, funeral benefits and
other commitments associated with permanent
employee become relevant to institute casuals as
well.

20. Section 8 of the ECA prohibits the engagement
of another to perform forced labour. The Act
does not define ‘forced labour’. However, the
ILO Forced Labour Convention (No. 29) of
1930 defines forced or compulsory labour to
mean:
"all work or service which is exacted from any
person under the threat of a penalty and for
which the person has not offered himself or
herself voluntarily."

21.  This definition consists of three elements:
1. Work or service: refers to all types of work occurring
in any activity, industry or sector including in the
informal economy.
2. Menace of any penalty: refers to a wide range of
penalties used to compel someone to work.
3. Involuntariness: The terms “offered voluntarily” refer
to the free and informed consent of a worker to take a
job and his or her freedom to leave at any time. This is
not the case for example when an employer or recruiter
makes false promises so that a worker take a job he or
she would not otherwise have accepted.

22. Article 2(2) of Convention No. 29 describes five (5)
situations, which constitute exceptions to the
“forced labour” definition under certain
conditions:
 Compulsory military service.
 Normal civic obligations.
 Prison labour (under certain conditions).
 Work in emergency, situations (such as war,
calamity or threatened calamity e.g. fire, flood,
famine, earthquake).
 Minor communal services (within the
community).

23. The Act seeks to empower the citizens by
prioritising them in terms of job
opportunities.
Jobs are not to be given to expatriates unless
the employer can show that indeed there are
no able Zambians who can perform such or
who are competent for such a job.

24. Section 16(1) of the ECA stipulates that as a
general rule, fifteen (15) years, is the
minimum contractual age for employment in
Zambia.
The exceptions are provided under section
16(3) of the Act.

25.  The Code in section 27 has codified probation, which
was previously not provided by law but merely best
practice. The Code provides for a period of 3 months’
probation, which may be extended for a further
period of not more than 3 months.
 Where the employer does not inform the employee in
writing on whether or not the employee is confirmed,
the employee shall be deemed to be confirmed from
the date of the expiry of the probation period.
 The contract of employment maybe terminated
during probation by either party giving 24hrs notice of
termination.

26.  In the case of the employer, termination can only be
done after an assessment has been made as to the
suitability of the employee for the job. It appears that
the assessment of the employee suffices as a reason
for termination as required by the Code and the
employer need not give any other reason.
 An employee who is re-employed by the same
employer for the same job within a period of 2 years
from the date of termination of the contract of
employment with that employer shall not be subject
to probation, where the termination was not
performance related.

27. Section 66 of the ECA 2019 mandates
employers to pay wages to an employee. The
frequency of the wages, is dependent on the
nature of the employee’s contract of
employment. See S.66(1)(a)–(f) for the
variations in frequency on the payment of
wages.

28. The ECA 2019 provides for seven (7) types of
leave which apply in varying circumstances.
These include the following and are discussed
in the preceding slides.
Annual leave-s.36; Sick leave and medical
discharge-s.38; Compassionate leave-s.39;
Family responsibility leave-s.40; Maternity
Leave-s.41; Paternity leave-46; Forced
leave-s.48

29. An employee apart from a temporal or casual
employee who has been in continuous
employment with the same employer for a
consecutive period of twelve (12) months, is
entitled to two (2) leave days with full.

30. An employee is entitled to sick leave from
work due to illness or injury which is not
occasioned by his/her employer, upon the
production of a medical certificate.

31. An employee who has lost a spouse, parent,
child or dependant is entitled to
compassionate leave with full pay for a
minimum period of twelve (12) days within a
year.
Compassionate leave can also be taken by an
employee on any other compassionate
grounds, other than death of a spouse,
parent, child or dependant.

32. According to S.40(1) ECA 2019, an employee
who has worked for a minimum period of six
(6) months, is entitled to family responsibility
leave with full pay for a maximum period of
seven (7) days within a year, to a sick spouse,
child or dependant, upon the production of a
medical certificate by the employee.

33. According to S.40(2) ECA 2019, an employee
is entitled to three (3) days paid leave within a
year to take up responsibilities relating to the
care, health or education of the employee’s
child, spouse or dependant.
 S.40(3)-The leave referred to in Section 40
shall not be deducted from an employee’s
accrued leave days.

34. Maternity Leave has always been part of the conditions
of service. However, the new Employment Code Act
2019 has added a few extra incentives to the provision
with regards to Maternity Leave which include:
 An increase of days from 90 days to 98 days for a
single birth and for multiple births has been extended
for a period of 4 weeks extra.
 Just by providing a medical certificate an employee is
entitled to maternity leave which can be taken
immediately preceding the expected date of delivery
except that at least six weeks maternity leave shall be
taken immediately after delivery.

35.  A female employee who gives birth to a
premature child is entitled to an extension of the
maternity for a period that be recommended by
the doctor.
 A female employee who remains in employment
with the same employer for a period of twelve
months and suffers a miscarriage pregnancy or
bears a still born child is entitled to six weeks
leave on full pay immediately after the
miscarriage or still born as long as its duly
certified by a medical doctor.

36. As can be seen from the points above, which
is now these incentives might work to the
disadvantage of female employees especially
those young and not yet married. Because
the above conditions may be good for female
employees but a disadvantage to the
employer as they will be seen as a cost to the
business.
Also see: S.42-44 ECA 2019

37. Female employees, due to the nature of their
genetic make-up, are entitled to one (1) day off
work every month, without having to produce a
medical certificate. The section provides as
follows:
S.47 A female employee is entitled to one
day’s absence from work each month without
having to produce a medical certificate
Or give reason to the employer.

38. A male employee who has been in continuous
employment for a period of 12 months
following the commencement of this Act, is
entitled to atleast five (5) working days
paternity under the conditions stated therein.

39. An employer may under certain
circumstances send an employee on forced
leave and the employee is entitled to basic
pay only during the period of the forced
leave.

40. Section 3 of the ECA 2019 defines a full time
employee as one who works a total of 48 hours
per week. It provides as follows:
“full-time” means employment under a
contract of employment that requires work
to be done for the maximum hours per week,
not exceeding a total of 48 hours, stipulated
by an employer;

41. Furthermore, S.74(1)(a) of the Act provides
that the normal day’s work that a full time
employee is to work, is 8 hours. It provides as
follows:
74. (1)The normal days’ work of a full-time
employee—
(a) shall consist of eight hours of actual
work;

42. Where a full time employee works more than
48 hours, s/he is entitled to an overtime
allowance at the stipulated rate. It provides
as follows:
75. (1) Subject to subsection (2), an
employer shall pay an employee who works
in excess of forty-eight hours in a week,
one and half times the employee’s hourly
rate of pay.

43. According to S.94(1), an employer is obligated to
provide an employee with medical care and attention in
the event of an employee falling ill while on duty. It
provides as follows:
94. (1) An employer shall, provide an employee with
medical attention and medicines and where
necessary, transport to a health facility during the
illness of the employee under—
(a) a collective agreement;
(b) a contract of employment; or
(c) the general conditions of service of the
undertaking.

44. The ECA 2019 in S.92, mandates an employer
to provide an employee with the following:
Housing
A loan or advance towards the purchase or
construction of a house
The employer to act as a guarantee for a
mortgage or a house loan
or in the alternative of all of the above;
The employer is to pay the employee housing
allowance.

45. Section 58 of the ECA 2019 provides for the
expiration of an employee’s contract of
employment upon such an employee attaining
the age of retirement as stipulated by written
law.
Eg for those working in the public service,
see:
SI No. 63 of 2014 for stipulated retirement
ages.

46. With respect to retirement benefits, these are
stipulated by the laws governing the
respective social security scheme an
employee is registered under, by an
employer. (More details in unit 10)

47. Section 55(1) of the ECA 2019, stipulates the
circumstances under which an employee’s
contract of employment will be deemed to
have been terminated by redundancy.
As follows (in summary)
If the employer shuts down or intends to shut
down the business under which his
employees were engaged; or

48. By unilateral variation of the employee’s
conditions of service under the latter’s
contract of employment.
See: Section 55(c) ECA 2019, which is a
codification of the principle on unilateral
variation in the case of National Milling
Company Limited v Simataa and Others
(SCZ Judgment No. 21 of 2000) [2000]
ZMSC 21 (31 May 2000)

49. Requirement for notice of redundancy:
Section 55(2) stipulates the proper manner in
which an employer is expected to provide
notice of redundancy of employees.
While Section 55(3) provides for the benefits
which redundant employees, are entitled to.

50. An employer may apply to the Labour
Commissioner, to be exempted from paying
his/her employees redundancy benefits in
certain circumstances as stipulated in S56(1)
ECA 2019.

51. According to section 57 ECA 2019, If
circumstances change regarding the
declaration of employees as redundant, an
employer is mandated to consider redundant
employees as a priority for re-employment,
before considering any other applicant.

52. Section 73 of the ECA 2019 mandates an
employer to pay an employee gratuity at the
rate of 25% of the employee’s basic pay
earned during a particular contractual period,
upon the expiration of that contract.

53. Every employee is entitled to a health break
of at least 20 minutes or two health breaks of
10 minutes each in addition to a 1 hour meal
break.

54. END OF LECTURE
THANK
YOU!