Human Rights and the Contract of Employment-Guidance Notes

Human rights are legal entitlements set out in national and international legal instruments.
Human rights are universally applied to all human beings. The contract of employment is
embedded in the common law principles as opposed to the current 19th Century concepts of
human rights. Human rights has influenced the development of labour law in Uganda, these are
have been viewed as collective or social rights, such as such as the right in Article 25 of the
UDHR to a standard of living adequate for the health and well-being of the worker and
dependants.

However, the common law has remained strongly wedded to the notion that legal relations in the
workplace are private, a matter for agreement between the parties rather than public regulation,
and that the applicable rules and obligations should be derived from agreement, whether at
individual or collective level, rather than any kind of universal and inalienable entitlements.

Even though now the Constitution of the Republic of Uganda requires courts to observe a wide
range of fundamental rights, it remains true that the starting point of the common law in respect
of employment tends to marginalize fundamental rights: what governs employment relations is
primarily the agreement of the parties rather than mandatory rights that guarantee respect for
dignity, equality, solidarity, and liberty.

Some of the ideas that today we would associate with human rights were influential in shaping
the development of the common law of the contract of employment. In the nineteenth century,
these values might have been more frequently described as liberties, freedoms, or principles,
rather than rights.

Influence of human rights in the Construction of the Contract of Service

Judges have either explicitly or impliedly referred to the language of human rights in general
statement of principle. These rights have included: the right to work, a right to strike, and
property rights, idea of liberty as opposed to slavery. Globally, human rights continue to shape
laws regulating employment relationships.
Article 40 of the Constitution provides for Economic rights, which directly apply to employment
law.

It provides that:

(1) Parliament shall enact laws—

(a) to provide for the right of persons to work under satisfactory, safe and healthy conditions;

(b) to ensure equal payment for equal work without discrimination; and

(c) to ensure that every worker is accorded rest and reasonable working hours and periods of
holidays with pay, as well as remuneration for public holidays.

(2) Every person in Uganda has the right to practise his or her profession and to carry on any
lawful occupation, trade or business.

(3) Every worker has a right—

(a) to form or join a trade union of his or her choice for the promotion and protection of his or
her economic and social interests;

(b) to collective bargaining and representation; and

(c) to withdraw his or her labour according to law.

(4) The employer of every woman worker shall accord her protection during pregnancy and after
birth, in accordance with the law.

A. The Right to work

The idea of the right to work includes both liberty to participate in the labour market in a chosen
occupation, and a positive right to a job. The essence of the right to work is contained in Article
40.2: ‘Every person in Uganda has the right to practise his or her profession and to carry on any
lawful occupation, trade or business.’

A similar idea has been invoked by judges in common law when applying the doctrine of
restraint of trade to restrictive terms applicable during and after termination of contracts for the
personal work. In the case of A Schroeder Music Publishing Co Ltd v Macaulay [1974] 1
WLR 1308 (HL), 1313, Lord Reid stated: ‘The public interest requires in the interests both of
the public and the individual that everyone should be free so far as practicable to earn a
livelihood and to give to the public the fruits of his particular abilities.’ This aspect of the right to
work has been invoked as a ground of public policy to justify challenges to excluding a group of
people from entering a particular trade or profession, including the legal profession.

In several jurisdictions, women were discriminated against in legal practice; however, this has
been outlawed based on non-discrimination and equality principles related to the right to work.
Below are the reasons why women were excluded from the legal profession based on their
gender.

As Justice Ryan maintained in Re Goodell:1

There are many employments in life not unfit for the female character. The profession
of law is surely not one of these. The peculiar qualities of womanhood, its gentle
graces, its quick sensibility, its tender susceptibility, its purity, its delicacy, its emotional
impulses, its subordination of hard reason to sympathetic feeling are surely not
qualifications for forensic strife. Nature has tampered woman as little for the juridical
conflicts of the court room as for the physical conflicts of the battlefield.
Currently, laws nationally and internationally have challenged this position because it
discriminates against women. The current presence of women has also revolutionalised the
profession. See other professions including Mining Act Cap 248(repealed) which prohibited
women from working underground in mines and Mining Act 2003, which removed the
prohibition based on the right to work and freedom from discrimination enshrined in the
Constitution and international human rights instruments.

The positive aspect of the right to work, the right to an actual job, appears to conflict with an
employer’s freedom to choose to employ someone or not, and for that reason has been rejected
as a general principle. Nevertheless, once someone has been employed, the right to work, in the
sense of the right to perform a job has been successfully claimed against the employer’s decision
to suspend a worker. This is embedded in the implied duty to provide work.

1
39 Wis (1875): 232 at 245
The right to work is recognized under various international and regional instruments, including
the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic,
Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights
(ICCPR), the Convention on Elimination of All Forms of Discrimination Against Women
(CEDAW), the African Charter on Human and People’s Rights (Banjul Charter) and the Protocol
to the African Charter on Human and People’s Rights on the Rights of Women in Africa
(Maputo Protocol). Uganda has ratified several human rights instruments relevant to rights of
women in the workplace, including the CEDAW in 1985, the ICESCR in 1987, the ICCPR in
1995, the Banjul Charter in 1986, and the Maputo Protocol in 2010. Uganda is also a signatory
to various International Labour Organisation (ILO) Conventions

The Universal Declaration of Human Rights ’s provisions on the right to work include the right
“to free choice of employment.2 Article 6(2) of International Covenant on Economic, Social and
Cultural Rights (ICESCR) provides that the right to work includes the right of everyone to the
opportunity to gain his living by work which he freely chooses or accepts, and will take
appropriate steps to safeguard this right.

The ICESCR also includes sections recognizing the rights of everyone to the enjoyment of just
and favourable conditions of work with regard to fair wages and equal remuneration for work of
equal value without distinction of any kind, in particular, women being guaranteed conditions of
work not inferior to those enjoyed by men, with equal pay for equal work.3

B. Right to Strike

The idea of the right to strike is now protected under Article 29 of the Constitution, and the
section 3(d) of the Labour Unions Act, 2006 and section 30 of the Labour Disputes (Arbitration
and Settlement) Act 2006.

C. Right to property

Finally, the idea of respect for the right to peaceful enjoyment of property, which is guaranteed
in Article 26, lies implicitly behind many legal protections of interests of employers in

2
Article 23 of the UDHR
3
Article 7 of the ICESCR
connection with employment, such as, the employer should be normally empowered to exclude
an employee from the workplace, provide wages are paid to the employee. The idea of the right
to property can be evoked to protect employer’s wages from seizure or forfeiture by the
employer either as a disciplinary measure, or as a device for reducing labour costs.

D. The right to liberty and freedom from forced labour

The contract of employment is shaped by the common law ideas of freedom of contract and
individual liberty. This right is protected under section 5 of the Employment Act and Article 25
of the Constitution.

E. The right not to be unfairly dismissed

This is embedded in the right to disciplinary hearing and the requirement of notice before
termination. Look at Sections 58, 66 and 68 of the Employment Act.

F. Non-Discrimination

The right to equality and freedom from discrimination is enshrined in article 21(1) of the
Constitution which states that all persons are equal before the law and under the law in all
spheres of political economic, social and cultural life and in every protection of the law.

Article 21 (2) provides that a person shall not be discriminated against on the ground of sex,
race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political
opinion or disability. The definition of discrimination is provided for under the Constitution to
mean giving different treatment to different persons attributable only or mainly to their
respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or
economic standing, political opinion or disability.4

G. Prohibition of Sex Discrimination

4
Article 21(3) of the 1995 Constitution of Uganda
The Employment Act addresses discrimination in employment.5 The Act prohibits
discrimination on the basis of age, sex, religion, political opinion, social origin, HIV Status or
disability. 6

H. The Right to Equal Pay for Work of Equal Value

The Employment Act has an express provision for the right to equal pay for work of equal
value.7

G. Prohibition of Sexual Harassment

The Employment Act introduced provisions prohibiting sexual harassment at the workplace.
Section 7 of the Employment Act prohibits sexual harassment by an employer or his
representative.

For it to amount to sexual harassment, the act must directly or indirectly subject the employee to
behavior that is sexual in nature and has a detrimental effect on the employee’s employment.

Sexual harassment-legally defined as the imposition of unwelcome sexual demands or the

creation of sexually offensive environments-has been a persistent problem in labour relations
across the world.

Section 7 of the Employment Act prohibits sexual harassment by an employer or his

representative. For it to amount to sexual harassment, the act must directly or indirectly subject
the employee to behavior that is sexual in nature and has a detrimental effect on the employee’s
employment.

Note: Read the sections on sexual harassment in the Employment Act

I. Maternity Protection and Benefits

There is a legal requirement for employers to make provision for maternity leave with pay of
sixty working days.8

5
Section 6 of the Employment Act
6
Section 6(2) of the Employment Act
7
Section 6(7) of the Employment Act obligates every employer to pay male and female employees equal
remuneration for work of equal value.
II. Paternity Leave

The Employment Act provides for a statutory right to paternity leave with pay of four working
days.9

8
Section 56 of the Employment Act
9
Section 57 of the Employment Act