Zambia is a multi-party democracy that has been a beacon of peace and stability in Sub-Saharan Africa since its independence. Generally, those setting up businesses in Zambia are assured of a stable and conducive environment, virtually free of political risk.
With regards to employment law in particular, the Industrial Relations Court (now a division of the High Court of Zambia) has jurisdiction to hear and determine industrial relations disputes. The Industrial Relations Division is a fast-track ‘court’ that is tasked with dispensing substantial justice, rather than insisting on strict rules of civil procedure. This enables both employers and employees to have their disputes heard and determined in a timely manner.
Is there any general advice you would give in the employment area?
The newly enacted Employment Code has enhanced the protection of employees’ rights and generally provides for improved conditions of service for all categories of employee. This is a shift from the previous labour regime, which provided more favourable conditions of employment for ‘protected’ employees, as opposed to ‘non-protected’ employees. Thus, the code has:
Employers have one year from 10 May 2019 to comply with the Employment Code. Any contracts of employment that are negotiated and executed after this date will have to be compliant with the provisions of the code. It is therefore crucial for persons intending to set up businesses in Zambia to seek expert legal advice in order to ensure compliance with the new law.
Emerging issues/hot topics/proposals for reform
Are there any noteworthy proposals for reform in your jurisdiction?
What are the emerging trends in employment law in your jurisdiction?
Due to the enhanced protection of employee’s rights and, generally, the improved conditions of service for all categories of employee that the Employment Code has introduced, it may become difficult for employers to sustain contracts of employment for long-term contract employees or permanent employees. It is expected that employers will prefer to execute short-term contracts or part-time work in order to cut back on the costs associated with paying employees engaged on a contractual or permanent basis.
The employment relationship
Country specific laws
What laws and regulations govern the employment relationship?
Generally, two pieces of legislation govern the employment relationship – namely, the Employment Code Act 3/ 2019 (Employment Code) and the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. Additionally, three statutory instruments are currently in force, issued pursuant to the Minimum Wages and Conditions of Employment Act, Chapter 276 of the Laws of Zambia (repealed and replaced by the Employment Code):
Who do these cover, including categories of worker?
The Employment Code covers all categories of employee, including protected and non-protected employees, casual employees, apprentices, full-time, part-time and temporal employees. The Minimum Wages and Conditions of Employment (General) Order covers a category of employees referred to as ‘protected employees’, which includes cleaners, guards, drivers, receptionists or qualified clerks. The Minimum Wages and Conditions of Employment (Shop Workers) Order covers ‘protected employees’ engaged in any shop. The Minimum Wages and Conditions of Employment (Domestic Workers) Order covers domestic employees. While the Industrial and Labour Relations Act does not categorise types of employee, it accords rights to employees in respect of trade union membership and collective bargaining
Are there specific rules regarding employee/contractor classification?
The Employment Code covers all categories of employee, but expressly excludes independent contractors. In order to qualify as an employment relationship, the code emphasises the need for employer control and for work to be carried out personally by the employee, for the benefit of the employer and within specific working hours. Additionally, the Zambian judicial system relies heavily on common law principles in drawing a distinction between employees and independent contractors.
Must an employment contract be in writing?
An employment contract need not be in writing. However, the employment contract must be in writing if it is for a period of six months or more.
Are any terms implied into employment contracts?
There are various statutory implied terms under the Employment Code. For instance, an oral contract for a period of one month will automatically be deemed to have been extended for the same period if an employee continues in employment beyond the initial one-month period. Furthermore, where an employee is a party to an oral contract and there is no contrary agreement between the parties, the period of the employee’s oral contract will be determined by the period based on which the employee’s wages are calculated – for instance, where wages are calculated on a weekly basis, the contract will be deemed to be a weekly one. However, in the absence of an agreement to the contrary, where wages are calculated on the basis of a period of less than a day, the contract will be deemed to be a daily contract.
The Employment Code further provides that an employer seeking to terminate a contract of employment shall provide an employee with a notice of termination. In the absence of a ‘notice of termination’ clause in the contract, the following periods of notice will be implied:
In addition to statutory implied terms, a number of common law implied terms may also be implied into contracts of employment, depending on the nature of the contract. One such term is the implied term of mutual trust and confidence between the employer and employee (see Standard Chartered Bank Plc v Nair [Appeal 14/2019], unreported).
Are mandatory arbitration/dispute resolution agreements enforceable?
Mandatory arbitration/dispute resolution agreements in employment contracts are enforceable under the Arbitration Act 19/ 2000 (see Mbazima v TAZ [2015/HP/ARB/009, unreported]). The courts also encourage out-of-court settlement agreements in order to save parties costs and time, as held by the Supreme Court in Finance Bank v Simataa [SCJ 21 of 2017] (unreported).
How can employers make changes to existing employment agreements?
An employer may change the terms of an employment agreement by obtaining consent from the employee. Any adverse alteration of the employee’s agreement entitles the employee to a redundancy pay out under the Employment Code
Is a distinction drawn between local and foreign workers?
A distinction is drawn between expatriate/foreign employees and citizens/local employees in terms of recruitment. When filling a vacancy, an employer must prioritise a citizen over an expatriate, unless the Zambian citizen does not possess the requisite skills for the job or a Zambian citizen has not applied for the job.
Recruitment
What are the requirements relating to advertising positions?
There are no requirements relating to advertising. In terms of recruitment, however, the law prohibits the employer from discriminating against prospective employees on several grounds including colour, nationality and health.
Wages and working time
Is there a national minimum wage and, if so, what is it?
There is no national minimum wage. Minimum wages apply only to ‘protected’ employees, a category of employees that includes cleaners, guards, drivers, receptionists and qualified clerks, shop workers and domestic employees.
Are there restrictions on working hours?
A normal working day should be eight hours. The employer may, with the employee’s consent, exceed the hours of work in a day without additional remuneration, provided the hours do not exceed 48 hours a week. For a watch person or guard, the weekly working hours should not exceed 60 hours a week.
Hours and overtime
What are the requirements for meal and rest breaks?
Employees are entitled to the following:
How should overtime be calculated?
Overtime is calculated at one-and-a-half times the employee’s hourly rate of pay. Overtime for work performed on a public holiday or weekly rest day (usually, a Sunday) is calculated at double the employee’s hourly rate of pay.
What exemptions are there from overtime?
There are no exemptions from overtime.
Is there a minimum paid holiday entitlement?
All employees, except temporary or casual employees, contracted to work for 12 months or more are entitled to annual paid leave calculated at a rate of two days per month or 24 days per year. Despite the leave days accruing from the first day of employment, leave can be taken only after 12 months of continuous employment.
What are the rules applicable to final pay and deductions from wages?
The Employment Code Act 3/2019 (Employment Code) provides that an employer may make deductions from an employee’s wages in respect of the following:
What payroll and payment records must be maintained?
The Employment Code provides that employers must keep a record of all the wages paid to employees and every deduction made from the wages, as well as the reason(s) for such deduction.
Discrimination, harassment & family leave
Family and medical leave
What is the position in relation to family and medical leave?
Employees are entitled to family responsibility leave of seven days in a year to enable them to nurse their sick spouses, children or dependants and, additionally, three days’ paid leave per year to cover responsibilities related to the care, health or education of their children, spouses or dependants. All employees are entitled to sick leave for an unlimited duration with no pay; however, after the expiry of six months, the employer may discharge the employee on medical grounds, on the recommendation of a medical doctor, if the employee does not recover from the illness. The decision to discharge the employee is discretionary and an employee may remain on sick leave after the six-month period. Employees on short-term contracts are entitled to sick leave plus full pay for 26 days and, thereafter, at half pay for the next 26 days. Employees on long-term contracts, by contrast, are entitled to sick leave plus full pay for the first three months of the leave and, thereafter, at half pay for the next three months of the sick leave.
What is the position in relation to harassment?
The Employment Code mandates an employer to have a policy on harassment.
What is the position in relation to whistleblowing?
There are no such provisions under the labour laws. In practice, employers have internal policies on whistleblowing.
Privacy in the workplace
Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?
The labour laws do not specifically provide for such rights. In terms of data protection and data privacy, the Electronic Communications and Transactions Act 21/2009 protects the employees’ private communication from being intercepted. In addition, the Constitution of Zambia generally guarantees and protects the right to privacy and provides that a person shall not be subjected to the search of his or her person or property, or the entry by others on his or her premises without his or her consent. In any case, the right to privacy may be limited with the employee’s consent and depending on the agreement with the employer.
To what extent can employers regulate off-duty conduct?
The employer can regulate the off-duty conduct of the employee only to the extent that it affects the employer’s business and with the agreement of the employee.
Are there rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?
There are no such rules under the labour laws. However, the Constitution of Zambia generally guarantees and protects the right to privacy and provides that a person shall not be subjected to the search of his or her person or property, or the entry by others on his or her premises without his or her consent. In addition, the Electronic Communications and Transactions Act protects the employees’ private communications from being intercepted.
Trade secrets and restrictive covenants
Who owns IP rights created by employees during the course of their employment?
Generally, an employer owns all IP rights, provided the creation is done during the course of employment and using the employer’s resources. The employee may be entitled to equitable remuneration in some instances (under the Patents Act 40/ 2016 and the Copyright and Performance Rights Act 1994.)
What types of restrictive covenants are recognised and enforceable?
The general rule is that restrictive covenants are unenforceable. However, they may be enforceable if they are reasonable and seek to protect a legitimate interest (see Patel v Patel (1985) ZMSC 22).
Are there any special rules on non-competes for particular classes of employee?
There are no rules under the labour laws for any specific class of employees. Generally, non-compete clauses will be enforceable only if they are reasonable and seek to protect trade secrets or connections that are genuinely threatened (see Patel v Patel (1985) ZM.)
Discipline and grievance procedures
Are there specific laws on the procedures employers must follow with regard to discipline and grievance procedures?
There are no specific laws on grievance procedures. Employers are merely obliged by the Employment Code Act 3/2019 to have a grievance procedure and code of conduct in place.
Industrial relations
Unions and layoffs
Is your country (or a particular area) known to be heavily unionised?
Zambia is fairly unionised.
What are the rules on trade union recognition?
A trade union must be registered with the Labour Commissioner and must possess a valid certificate of registration, in accordance with the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia.
What are the rules on collective bargaining?
Once an employer and a trade union have negotiated and agreed on a collective agreement (CA), the CA must be lodged with the Labour Commissioner within 14 days of signing. The Labour Commissioner must submit the CA to the Minister of Labour (MoL) for approval, within 14 days of the date of its receipt. The CA comes into force upon approval by the MoL and is then registered by the Labour Commissioner.
Termination
Are employers required to give notice of termination?
The Employment Code Act 3/ 2019 (Employment Code) requires the employer to give notice or to pay the employee in lieu of the notice period. If the contract of employment does not provide for a notice period, the Employment Code provides default periods depending on the duration of the contract of employment. It is not enough for the employer to give notice of termination, however: the employer must also give a valid reason for the termination connected with the capacity or conduct of the employee, or based on the operational requirements of the employer’s business. If the termination is based on conduct or performance, the employee must be accorded an opportunity to be heard (See Vekhnik v Casa Dei Bambini Montessori Zambia Limited (2018) ZMCA 312, unreported).
What are the rules that govern redundancy procedures?
The Employment Code requires an employer who intends to terminate employment by reason of redundancy to do the following:
Are there particular rules for collective redundancies/mass layoffs?
There are no such particular rules. The general rules on redundancy are also applicable to collective redundancies/mass layoffs.
What protections do employees have on dismissal?
The employee must be accorded an opportunity to be heard and the rules of natural justice must be observed throughout the disciplinary process (See Vekhnik v Casa Dei Bambini Montessori Zambia Limited). Furthermore, the Employment Code prescribes specific instances/circumstances for summary dismissal and requires the employer to pay an employee who has been summarily dismissed wages and other accrued benefits up to the date of dismissal. The code also requires the employer to submit to a labour officer (within four days of the dismissal) a report of the circumstances/reasons leading to the dismissal.
Courts/tribunals
Jurisdiction and procedure
Which tribunals or courts have jurisdiction to hear complaints?
The High Court has jurisdiction to hear industrial and labour complaints. The complaint may be filed either with the Industrial Relations Division or the Principal Registry of the High Court. Depending on the nature of the claim, the complaint may be lodged with the subordinate courts (See Zambia national Commercial Bank PLC v Musonda (2018) ZMCC 14, unreported).
What is the procedure and typical timescale?
A dispute will normally be instituted by a writ of summons and statement of claim at the Principal Registry of the High Court. Alternatively, it may be instituted by way of a notice of complaint accompanied by an affidavit in support in the Industrial Relations Division of the High Court, provided the notice of complaint is lodged within 90 days of the incident giving rise to the compliant. The 90-day period does not apply to cases lodged in the Principal Registry. In either case, matters will be determined within months or years depending on, among other things, the nature of the matter, the reliefs sought and the interests of the parties involved.
What is the route for appeals?
A party aggrieved by a decision of the Labour Commissioner may appeal to the Minister of Labour and Social Security (MoLSS) within 30 days of receipt of the decision. If dissatisfied with the decision of the MoLSS, such party may then appeal to the High Court. An appeal from the High Court lies with the Court of Appeal. Further appeals lie with the Supreme Court, but only in limited circumstances.
Law stated date
Give the date on which the above content is accurate.
