Ghana is experiencing an increase in outsourcing trends within some of its key industry sectors, particularly telecommunications, banking, insurance, oil and gas services, healthcare and energy. The objective for these businesses is to lower costs, increase efficiency and provide a better focus on their core competencies with increased flexibility to respond to dynamic business conditions in their industry sectors. Outsourcing is providing businesses in Ghana with the opportunity to take advantage of state-of-the-art technology without the commensurate investment in IT infrastructure and IT specialists. 

The increase in the automation of business processes and security risks have contributed significantly to the development of the outsourcing industry in Ghana. As a result of these developments there is greater awareness by government, businesses and individuals of data privacy, cybersecurity and compliance.

In Ghana, the most commonly outsourced IT functions are:

• telecommunications;
• website development, management and maintenance;
• software and application development;
• database development;
• technical support/help desk;
• infrastructure; and
• cybersecurity.

COVID-19

Ghana recorded its first case of COVID-19 on 13 March 2020. The COVID-19 pandemic has compelled Ghanaian businesses to innovate as they seek to thrive in a “new normal.” Businesses are working with their IT outsourcing partners to increase their ability to conduct work virtually, expand the scope in remote delivery models as well as automate and enhance their security systems. Even the most conservative of businesses that believed in the necessity of face-to-face interactions or physical proximity for the effective conduct of their businesses are effectively transitioning to a virtual environment.

The COVID-19 pandemic and its ongoing aftermath has driven many businesses to adopt strategic measures and certain developments to sustain their operations. One key development is the increase in cloud migration and options of cloud services. This has led businesses to invest in cloud services that are vital in helping businesses to reinvent and outmanoeuvre uncertainty. Cloud migration is critical for achieving real-time and updated performance and efficiency; thus, businesses have sought outsourcing services to address these needs. 

Another key market development is the partial or complete outsourcing of logistics and delivery services by several companies in Ghana to third parties employing automation or digital platforms to deliver their services. Fast food services and restaurants are amongst the most notable businesses in Ghana employing smartphone App services and/or digital platforms enhanced by artificial intelligence (AI).

As a result of government stay-at-home protocols and social distancing restrictions during the pandemic, several companies have practically been forced to operate virtually with little or no protection at all for their data and, thus, exposing them to threats of cyber-attacks. Since security is a top priority for companies handling personal, financial and payment data, these organisations outsourced security improvements, management of security services and other cybersecurity measures to third-party security service providers. A noteworthy development within the cybersecurity space in Ghana is the passing of the Cybersecurity Act 2020 (Act 1038) by the legislative body in Ghana. The Act established the Cybersecurity Authority, a body tasked to regulate cybersecurity activities and promote the development of cybersecurity in the country. 

Africa is becoming a favoured international location for business process outsourcing (BPO). Leading industry reports place Ghana as the top outsourcing destination in West Africa as a result of strong government support for companies that outsource their services to the country and attractive tax incentives. Ghana has strong public institutions and a developed financial industry. 

Further, low labour costs, geopolitical stability, major investment in telecommunications infrastructure, a large pool of an English-speaking labour force and a favourable time zone as well as a zero-tax policy for companies for ten years and only 8% tax following the initial ten-year tax-free period have contributed to its position.

Developing the Services Sector

The BPO industry is part of the government’s transformational agenda to develop the services sector of the economy. The Accra Digital Centre is a BPO hub set up by the government with an expectation that it would create about 10,000 direct and indirect jobs. Since the establishment of the Secretariat of the African Continental Free Trade Area (AfCFTA) in Ghana, Ghana has become more attractive as a base for expansion into the AfCFTA by foreign companies' BPOs. 

The most common BPOs in Ghana are:

• knowledge process outsourcing;
• legal process outsourcing; 
• research process outsourcing;
• recruitment process outsourcing;
• account process outsourcing;
• payroll process outsourcing;
• business continuity/disaster recovery; and 
• transportation/fleet management.

Increasingly, companies with limited financial or logistics capacity are turning to outsourcing for warehousing, logistics and distribution, particularly in the retail sector, in order to increase efficiency and profitability. Public sector procurement outsourcing in the healthcare sector has seen an increase during the COVID-19 period.

In the private healthcare sector, Ghanaian start-up mPharma has developed proprietary supply chain software that enables it to implement vendor managed inventory for independent healthcare providers in Africa. Further, mPharma has built a pharmacy benefits management (PBM) service for health insurance companies.

Additionally, companies with limited financial or logistics capacity are increasingly turning to outsourcing for warehousing, logistics and distribution, particularly in the retail sector, to increase efficiency and profitability. 

Social Media

The use of social media has risen tremendously in the past decade. Businesses and companies have adopted social media marketing as a tool for reaching consumers from diverse backgrounds. Social media marketing has also become an important tool for companies to draw on information to influence consumer behaviour. The pandemic has highlighted the need for businesses to outsource certain key social media-related skills, mostly due to a lack of in-house talent or the sheer volume of work involved. 

A further area of growth of BPOs has been in supporting businesses to develop online processes, creating and running online product campaigns and online distribution. In May 2021, a government project named “Amplified” was launched to assist young entrepreneurs by promoting business innovations and activities of social media entrepreneurs. Under this project, the sector ministry uses its social media platforms to amplify the products and services of young entrepreneurs by showcasing them to reach a much larger market. Young entrepreneurs are incentivised by the project to direct their social media marketing services onto the sector ministry’s platform at no extra cost.

In Ghana, new technologies such as AI, robotic process automation (RPA), blockchain technology and smart contracts are gradually evolving. As with other countries, new technologies are being explored in areas such as data storage, financial transactions, telecommunications, real estate, and asset management. The telecommunications sector, for example, utilises RPA and business process automation (BPA) to gather customer data or customer credit usage and generate a package for each customer according to their monitored data usage. 

The technology giant Google opened its first AI Research Centre on the African continent in Ghana in April 2019. Google has partnered with universities, the government and local institutions to help develop a new generation of AI developers in Ghana and the rest of Africa, and ensure that the right education and opportunities are in place. With these developments, it is expected that machine learning technology and AI will take off in Ghana, particularly in the agriculture, healthcare and education sectors. There is also an emerging market in Ghana for bitcoin and cryptocurrencies under blockchain technology. The Bank of Ghana is working on a pilot phase of a digital currency, a general-purpose Central Bank Digital Currency (retail CBDC) in Ghana, named “E-Cedi”.

Drone based AI research and technology is on the increase and has resulted in benefits in research in digitisation in the agriculture and healthcare sectors. For example, some farmers are already improving productivity by using drones for crop diagnostics, more precision spraying covering wider areas much more efficiently. In the healthcare sector, the government has outsourced part of the distribution of its medical supplies to a US-based drone services company, Zipline, that uses drones to deliver medical supplies to remote parts of the country in its quest to achieve universal access to medicines.

Generally, there is no specific legislation in Ghana that regulates outsourcing, however, aspects of the Labour Act, 2003 (Act 651) (the "Labour Act") and Labour Regulations, 2007 provide some restrictions on outsourcing. The legislation permits an employer to employ a worker through a centre or a private employment centre. However, there is a comprehensive outline of the guidelines to be followed in running such a centre or agency. Further, any person who contravenes any of the provisions relating to outsourcing commits an offence and is liable on summary conviction to a fine of 25 penalty units. One penalty unit is equivalent to GHS12 (USD1 as of 18 October 2022).

Companies should note that:

• there is legislation which may impact on outsourcing in certain industry specific sectors as listed below (see 2.2 Industry-Specific Restrictions); and
• all public sector outsourcing is regulated by the Public Procurement Act 2003 (Act 663), regardless of the industry sector under which the services to be outsourced fall (see 2.2 Industry-Specific Restrictions).

The following sector-specific legislation regulates outsourcing transactions in the financial services sector:

• the Banks and Specialised Deposit-Taking Act, 2016 (Act 930);
• the Ghana Deposit Protection Act, 2016 (Act 931);
• the Public Financial Management Act, 2016 (Act 921);
• the Securities Industry Act, 2016 (Act 929); and
• the Unit Trusts and Mutual Funds Regulations 2001.

The cumulative effect of the above legislation is as follows.

• A bank, specialised deposit-taking institution or financial holding company shall not outsource a function to any other person without the written approval of Ghana’s central bank, namely the Bank of Ghana. Furthermore, the Bank of Ghana has the right to appoint such competent persons as advisors for the bank or specialised deposit-taking institution or financial institution where it considers it necessary. 
• The board of the relevant institution reserves the right to appoint persons who may be able to give assistance to it. 
• The Minister of Finance has the power to appoint issuing agents, registration agents, primary dealers and other agents to facilitate primary and secondary market transactions in government debt securities. 
• Public officials may be transferred or seconded to give assistance to the Securities Exchange Commission. The Securities Exchange Commission also has the power to engage the services of advisors and consultants on the recommendation of its board.

With regard to unit trusts and mutual funds the board of directors of a company may:

• enter into underwriting or sub-underwriting contracts in relation to the subscription or purchase of any investment; 
• appoint a custodian to discharge the obligations laid on the custodian by law and related regulations; and 
• appoint a manager to manage a mutual fund established under the Unit Trusts and Mutual Funds Regulations 2001.

The underwriter, custodian or manager of the relevant fund to which the services are outsourced must comply with strict rules set out by the Securities Exchange Commission. A bank, specialised deposit-taking institution or financial holding company which outsources a function to any other person without the written approval of the Bank of Ghana shall pay to the Bank of Ghana an administrative penalty of 1,000 penalty units.

Public Sector Outsourcing

The key legislation that regulates and governs public procurement in Ghana is the Public Procurement Act 2003 (Act 663) (the "Act") as amended by the Public Procurement (Amendment) Act 2016 (Act 914). The Act regulates the procurement of all goods, works and services financed, in whole or in part, from public funds and the disposal of government stores. Every government agency, institution and establishment in which the government has a majority interest must comply with the Act. Public universities, public schools, colleges and hospitals are included.

The Public Procurement Authority (the "Authority") must ensure that public procurement is carried out in a fair, transparent and non-discriminatory manner and is vested with administrative powers to ensure that procuring entities comply with the Act. There are prescribed threshold values set out in the Schedules to the Act.

The Authority is also mandated to:

• monitor the processes employed by procuring entities;
• review procurement decisions made by procuring entities;
• investigate procurement malpractices; and
• sanction offenders.

Oil and Gas Services Outsourcing

Local Content and Local Participation Regulations L.I 2204 ("L.I.2204") promotes the maximisation of value-addition and job creation through the use of local expertise, goods and services business, financing in the petroleum industry value chain and their retention in Ghana. The Petroleum Commission has a mandate to ensure companies comply with L.I.2204.

Every contractor, sub-contractor and any other allied entity engaged in petroleum activities is required by Local Content L.I.2204 to incorporate local content as an important element in their project execution and management philosophy. Every petroleum project, activity or transaction must have a Long-Term and Annual Local Content Plan, which must be assessed and approved by the Commission. "Local Content" refers to the quantum/percentage of locally produced materials, personnel, financing, goods and services rendered to the oil industry that can be measured in monetary terms. Businesses in the upstream oil and gas sector must comply with L.I.2204 when outsourcing services.

Other Sectors

It is important that the parties to an outsourcing contract comply with any relevant sector-specific laws, such as requirements for licences, permits or approvals which regulate activities which are the subject matter of outsourcing. Examples of regulated sectors in Ghana include mining (Minerals Commission), pharmaceuticals (Food and Drugs Authority/Ghana Standards Authority), telecommunications (Ministry of Communication and Digitalisation), banks (Bank of Ghana) and insurance (National Insurance Commission).

Anyone processing the personal data of Ghanaian citizens must comply with Ghana’s data protection laws. The Data Protection Act, 2012 (Act 843) governs the legal and regulatory restrictions on data processing or data security. This means any provider of outsourced services must process personal data in accordance with prescribed data protection principles set out in the Act. Personal data is defined as “data about an individual who can be identified from the compiled data or other information in the possession or likely to come into the possession of the data controller”. The Act requires a data processor to take into consideration the privacy rights of the data subject in the processing of personal data. A data subject is the individual who is the subject of the personal data. It is compulsory for all processors and/or controllers of personal data to register with the Data Protection Commission. 

A data controller who is not resident in Ghana must register as an external company with the Data Protection Commissioner. If the outsourcing services company appoints a third party to process data on its behalf, that appointment must be governed by a contract. The contract must be in writing and shall require the third-party data processor to establish and maintain the confidentiality and security measures necessary to ensure the integrity of the personal data. Where the third-party data processor is not domiciled in Ghana, the data controller shall ensure that the processor complies with all relevant laws of Ghana. 

Most IT and BP outsourcing activities involve the processing of personal data. The data controller is usually the person procuring the outsourcing services with the data processor being the outsourcing service provider. The data controller must undertake extensive due diligence to ensure that the data processor has put in place proper measures to comply with the requirements of the Act.

Data controllers and data processors are also expected to adhere to the provisions of the Cybersecurity Act relevant to data processing, data retention and prevention of illegal access to data of data subjects.

The Offshore Transfer of Personal Data

There are no specific provisions in the Act on the transfer of personal data from Ghana to offshore jurisdictions. The Act is silent on the mechanisms which a business may typically utilise to transfer personal data offshore in compliance with applicable transfer restrictions. However, the sale, purchase, knowing or reckless disclosure of personal data or information is prohibited under the Act. The Act does specify exceptions to the grant of consent by a data subject to the processing of their personal data. Logically, these exceptions should be equally applicable in the case of foreign transfers of personal data. Thus, businesses may transfer personal data abroad with the prior consent of the data subject, or where the purpose for which the personal data is processed is necessary for the purpose of a contract to which the data subject is a party, or to protect a legitimate interest of the data subject, or the transfer is necessary for the proper performance of a statutory duty, or is necessary to pursue the legitimate interest of the data controller, or a third party to whom the data is supplied. 

Conversely, there are legal restrictions on cross-border data flows from an offshore jurisdiction into Ghana. The Act provides that a data controller or processor shall, in respect of foreign data subjects, ensure that personal data is processed in compliance with data protection legislation of the foreign jurisdiction of that subject where personal data originating from that jurisdiction is sent to Ghana for processing. In either case, the individual may object to the processing of their personal data at any time.

Data Security

In relation to data security, there is a legal requirement that a data processor or controller must treat the personal data of a data subject as confidential and must also comply with security measures in processing such data. This requirement applies to both local and foreign data subjects. All personal data which is collected must only be used for its stated purpose.

A data controller has a duty to prevent the loss of, damage to, or unauthorised destruction of personal data, and the unlawful access to or unauthorised processing of personal data. The data controller must therefore adopt appropriate, reasonable, technical and organisational means to take necessary steps to ensure the security of personal data in its possession or control. Additionally, a data controller is required to take reasonable measures to identify and forestall any reasonably foreseeable risks and ensure that any safeguards put in place are effectively implemented and updated continually. 

A data controller is mandated to observe generally accepted and industry specific best practices in securing data and ensure that data processors comply with security measures. 

All data controllers are expected to comply with cybersecurity standards and protocols published by the Cybersecurity Authority.

There are additional specific requirements for the processing of sensitive personal data. Sensitive personal data is defined as personal data consisting of information related to: 

• a child who is under parental control according to the law; or 
• the religious or philosophical beliefs, ethnic or tribal origin, colour, race, trade union membership, political opinions, physical or mental health, mental condition, DNA, sexual life, criminal behaviour of the data subject or details of court proceedings relating to the individual.

There is no standard contract model in Ghana. Different businesses use different types of contract for their outsourcing services.

However, simple outsourcing contract models are preferred by businesses. A company would usually enter into a direct outsourcing relationship with itself. Where a parent company is procuring services for itself and other companies within the group the contract model may be different. The parent company may negotiate standard terms directly with the service provider but require companies within the group to sign their contracts directly with the service provider. The service provider may insist on a parent company guarantee with respect to subsidiary companies that do not have substantial balance sheets. Alternatively, the parties may agree an agency-type agreement. 

In the telecommunications industry purchase orders are used for procurement services. Data protection clauses, security protection clauses and confidentiality clauses are included in purchase orders and these are fundamental clauses to be observed in the agreements.

Other contractual models commonly used for outsourcing in Ghana include joint ventures, partnerships, build-operate-transfer structures, managed services agreements, PPP arrangements and framework agreements.

In certain cases, the type of contract model is specified by legislation. For example, L.I.2204 provides that a non-indigenous company which intends to provide goods and services to a contractor, a subcontractor, licensee, the corporation or other allied entity within Ghana must incorporate a joint venture company with an indigenous Ghanaian and afford that indigenous Ghanaian company an equity participation of at least 10%. 

The Ghana Investment Promotion Centre Act, 2013 (Act 865), also provides that a person who is not a citizen may participate in an enterprise in Ghana if that individual enters into a joint enterprise with a citizen, in which case the foreigner must invest foreign capital of not less than USD200,000 in cash or capital goods relevant to the investment or a combination of both by way of equity participation and the partner who is a citizen must have at least 10% equity participation in the joint enterprise.

The Payment Systems and Services Act 2019 (Act 987) also mandates that a body corporate that intends to operate as a payment service provider shall have at least a 30% equity participation of a Ghanaian company.

PPPs in Ghana are currently regulated by the National Policy for PPPs in Ghana (the "PPP Policy"). Except for unsolicited bids, the selection of private sector parties in PPP transactions shall be carried out through competitive bidding methods. The PPP Policy, however, requires that the selection and procurement of a transaction adviser to assist and advise a contracting authority on the PPP project must comply with the procurement procedures under the Act. There are currently efforts being made to prepare a specific law to regulate PPPs in Ghana, including regulating the procurement process for a private partner.

There are no changes to contract models as a result of digital transformations in Ghana. Nevertheless, in contracts involving data and the Internet of Things (IoT), such as cloud computing, the parties are required to comply with the provisions of the Data Protection Act, 2012, (Act 843), Electronic Communications Act, 2008 (Act 775), Electronic Transaction Act, 2008 (Act 772) and the Cybersecurity Act, 2020 (Act 1038).

The main customer protections and remedies include:

• the parties should agree a well-structured approach to transition planning with transition arrangements either be set out in the body of the main contract or in a separate agreement attached as a schedule to the main agreement;
• the customer must have audit rights under the contracts;
• there must be comprehensive provisions with respect to disaster recovery, escrow and business continuity with respect to the outsourced services;
• it is usual for the customer to require the service provider to hold a certain type of insurance with an agreed value threshold;
• the contract must include provisions on benchmarking, data protection compliance and security;
• subcontractors must be subject to the prior approval in writing by the customer; and
• dispute resolution.

Further, more detailed, protections and remedies include the following.

Scope of Work and Service Levels

These are either incorporated in the main body of the agreement or in a separate service level agreement which is attached as a schedule to the main agreement. Service levels are monitored at regular intervals agreed between the parties, usually on a monthly basis. They are linked to service credits which is essentially financial compensation in the event of non-performance by the service provider. 

Some service providers may wish to include claw back provisions in the form of “service debits” where they exceed the service levels specified in the contract. There must also be clear reporting and escalation mechanisms built into the outsourcing contract. The service levels and service credit regime should not be used punishment or a way to claw back money. It should encourage good behaviour by the service provider and align the objectives of the parties.

Warranties, Indemnities and Liabilities

There are standard warranties and indemnities from the supplier mainly relating to its commitment, compliance with certain codes of conduct, standard of work and performance. This would be linked to breach and liability for failure on the part of the supplier. Any heads of claim for which liability is excluded must be clearly set out. Liability caps with respect to actionable claims should be carefully negotiated. 

Intellectual Property Rights

The customer would seek to retain its intellectual property rights in and to all information, data and/or other materials it provides to the supplier for the purposes of providing the services. The supplier usually retains all the intellectual property rights it uses to provide the services. Any bespoke intellectual property rights created by the supplier in the course of providing the services are typically owned by the customer.

Termination Provisions

Termination must include an exit plan for an orderly handover following termination of the outsourcing relationship. It is important that the exit plan is regularly updated throughout the duration of the contract. Each party’s rights and obligations at breach and on termination must be clearly set out in the contract. The events of termination, consequences of termination and the rights and duties of each party following termination must be clear.

The general rule under the law of contract in Ghana is that a party to an agreement will have the right to terminate where there has been a breach of a fundamental or material term of the agreement by the other party. 

Parties are generally free under Ghanaian law to specify grounds of termination of contracts. In an outsourcing relationship, the risk to the supplier and the risk to the customer upon termination are different. While they both stand to lose revenue, there are additional potential losses for the customer, such as significant disruption to its business and loss of reputation, depending on the type of services that had been outsourced. This difference should be recognised in the negotiation of the termination arrangements between the parties.

Examples of provisions that may be set out as grounds for termination by either party in an outsourcing contract include:

• material breach by a party which is not capable of remedy or is capable of remedy but is not remedied after a certain period;
• a non-material breach which is not remedied after an agreed period of time to enable the offender to cure the breach;
• insolvency event affecting one party or threatened insolvency of one of the parties; and
• force majeure.

The customer may include the following additional termination rights:

• non-retention by the supplier of certain key employees prior to the minimum agreed period; 
• change of control of the supplier; and
• termination for convenience – this is usually accompanied by a pre-determined financial compensation to the supplier which varies in accordance with how far into the contract the customer wishes to exercise such right.

An injured party to a contract (one who has suffered a breach) is entitled to recover any loss which results from the breach as long as the loss is not remote or is not one which could have been avoided by taking reasonable steps in mitigation.

Direct Loss

A direct loss occurs as a natural result of a breach, and in the usual course of things. It is a loss which is foreseeable as the natural result of a breach. Examples are loss of profit or goodwill. Direct losses are recoverable under Ghanaian law.

Indirect Loss

An indirect or consequential loss is a loss that is attributable to a special or extraordinary circumstance and which is not in the usual course of things. Indirect losses are only recoverable it they were foreseeable or could have been mitigated.

Loss of Profit and Goodwill

Where the loss of profit is as a result of a breach of contract, then the court will compensate a plaintiff where it establishes that the loss was occasioned as a result of certain expenses incurred by the plaintiff in anticipation of the defendant’s performance of the contract.

In relation to loss of goodwill, the Protection Against Unfair Competition Act, 2000 (Act 589) provides that any act or practice in the course of industrial or commercial activities that damages or is likely to damage the goodwill or reputation of another person’s enterprise or its activities constitutes an act of unfair competition whether or not the act or practice causes confusion. 

Examples of what constitutes damage to another person's goodwill or reputation include damage resulting from the dilution of the goodwill or reputation attached to:

• a trade mark, whether registered or not;
• a trade name;
• a business identifier other than a trade mark or a trade name;
• the appearance of a product; and
• the presentation of a product or service. 

A person damaged by an act of unfair competition may bring an action for:

• an order for injunction to prevent further acts of unfair competition;
• a provisional order to prevent unlawful acts or to preserve relevant evidence; and
• any other remedy that the court may consider fit to order.

There is no legislation or legal framework with respect to implied terms in outsourcing services contracts such as can be found under the UK’s Consumer Rights Act (2015). However, it is important to note that there are terms in the Sale of Goods Act, 1962 (Act 137) that are implied into every contract of sale of goods in Ghana. 

These include:

• implied term that the specific goods are in existence;
• implied undertaking as to title;

• implied term that where a sale is by description the goods must correspond to the description;
• implied term that where a sale is by sample the goods must correspond to the sample;
• implied term as to the quality and fitness for purpose of the goods;
• implied term as to the quantity of goods; and
• implied term on the delivery of the goods.

Therefore, where the outsourcing contract relates to the sale of goods, these implied terms may apply. Ghanaian courts do recognise both express and implied terms in a contract. According to the courts, implied terms may include custom, practice and statutory rights of the parties. Therefore, these would also apply in an outsourcing relationship. Generally, the common law remedy of damages and equitable remedies, such as injunction and specific performance, are also applicable. Implied terms tend to be relevant where the express terms either do not adequately address the relevant matter or fail to address the matter.

Neither the Data Protection Act, 2012 (Act 843) nor the Cybersecurity Act, 2020 (Act 1038) specify any contractual protections to be included in contracts. However, in order to comply with the two Acts, certain provisions must be included in the contract. Examples of these are:

• detailed definitions, including the definition of the purpose for which the data is being transferred;
• detailed description of each party’s responsibilities;
• liability and consequences of breach of contract;
• consideration;
• governing law;
• confidentiality;
• security measures;
• termination; and
• post-termination obligations of each party.

The contract terms for outsourcing services do not differ when the outsourcing is cloud based. Parties in contracts involving data and the IoT, such as cloud computing, are required to comply with the provisions of the Data Protection Act, 2012, (Act 843), Electronic Communications Act, 2008 (Act 775), Electronic Transaction Act, 2008 (Act 772) and the Cybersecurity Act, 2020 (Act 1038).

There is no legislation or legal framework in Ghana that specifically governs employee transfers with respect to outsourcing. However, the Labour Act contains some provisions that may be applicable in certain specified scenarios. The Labour Act grants a private-sector employer the right to transfer an employee in their employment but there are specific provisions in the Act for the transfer of public-sector employees.

Where the outsourcing would lead to major changes in production, programme, organisational structure or technology and is likely to entail terminations of employment of the customer’s workers, notification of the Chief Labour Officer in writing is a prerequisite. The notification must be accompanied with certain specified information and, where applicable, notification to the employee’s trade union no later than three months before the changes. There is also a requirement to have consultations with the trade union with the objective of taking measures to mitigate the effects of the termination on the relevant employees, eg, finding them alternative employment. This may prolong the outsourcing process. 

Compensation provisions apply where the outsourcing results in an employee’s redundancy or the “diminution” in the terms and conditions of their employment. In determining whether an employee has suffered any diminution in their terms and conditions of employment, account shall be taken of the past services and accumulated benefits, if any, of the employee in respect of the employment with the customer prior to the changes. Redundancy disputes may be referred to the National Labour Commission for settlement. The decision of the National Labour Commission shall, subject to any other applicable law, be final. These provisions do not apply to casual employees, employees on fixed-time contracts and employees serving a period of probation or qualifying period of employment of reasonable duration determined in advance.

See 5.1 Rules Governing Employee Transfers.

There is no automatic transfer of employees by operation of law in an outsourcing contract. In practice, employee transfers within the context of outsourcing are a matter of negotiation between the customer and the supplier of the services. It is a risk allocation and balancing exercise whereby each party signs up to representations, conditions, warranties and indemnities in favour of the other party. The customer would, for instance, usually require key employees who transfer to the supplier by reason of the outsourcing to continue to be employed by the supplier for an agreed minimum term. Risk allocation provisions cover the commencement, duration and termination of the contract.

Although, there is no specific legislation or legal framework in Ghana in respect of remote working, the legal and regulatory restrictions under the Labour Act, 2003 (Act 651) would be applicable in scenarios as set out below.

Contract of Employment

Contract of employment must be issued to the employee after six months of employment and Notices must be issued before termination. The periods of termination vary according to the length of the employment, for example:

• when contracts are for more than three years, one month’s notice;
• when the contract is for less than three years, two weeks’ notice or two weeks’ pay in lieu of notice; or
• when contracts are on a week-to-week basis, seven days' notice. 

In addition to the general provisions under the Act for permanent employees, there are also special provisions in the Act that protect temporary and casual workers.

Hours of Work

The statutory requirement is a maximum of 8 hours a day or 40 hours a week, subject to exceptions provided under the Act. Employees have the right to a continuous daily rest period of at least 12 hours between 2 consecutive work days, and a weekly rest period of 48 consecutive hours in every 7 days of normal working hours. 

Leave

Employees are entitled to annual leave with pay (minimum of 15 working days in every calendar year of continuous service, deemed to mean not less than 200 days in the particular year).  

Pay

Salaries, wages and allowances are required to be paid in legal tender in addition to any non-cash remuneration. No deductions must be made save for statutory deductions in addition to amounts due by the employee for provident, pension or other agreed funds, for trade union dues and the like.

Employer Liability for Employees’ Injuries or Diseases

An employer is liable for injuries or diseases contracted by employees while performing duties that are work-related. 

Under Ghanaian law, activities “arising out of and in the course of employment” include activities incidental to the employment, in so far as the employee is not on a frolic of their own. The injuries or diseases do not have to be at the employer’s premises or places over which the employer has control for compensation to be payable. The law does not exempt employers from liability for employees who work remotely. 

Security, Data Protection and Confidentiality

As a data controller, an employer is required under the Data Protection Act, 2012 (Act 843) to take all necessary steps to secure the integrity of personal data through the adoption of appropriate, reasonable, technical and organisational measures in order to prevent the loss of, damage to, unauthorised destruction of, unlawful access to, or unauthorised processing of personal data. 

In this respect, the employer is required to take reasonable steps to identify risks to personal data, implement safeguards against the risks, and regularly verify and ensure that such safeguards are updated. Generally, accepted information security practices must be observed. 

The employer must have a policy and/or measures in place that are adequate to ensure that its confidential information is not at risk of breaches by the employee and/or third parties. For example, where employees are provided with laptops, they may include software that prevents exportation and transfer of data unless it passes security clearance from an authorised source.

Health and Safety

Under Ghanaian law, an employer must take all reasonable and practicable steps to ensure that its employees are not at risk of personal injury or damage to their health in the course of performing their duties. An employer has a duty to ensure that its employees work under safe, satisfactory and healthy conditions. There are no exemptions from this obligation for employees who work remotely. Consequently, legislation on health and safety applicable to employment generally still apply to employees who work remotely. 

Costs of Setting Up Remote Working Space and Provision of Equipment for Employees

An employer has a duty to provide work and appropriate raw materials, machinery, equipment and tools to its employees for the performance of their duties. The cost of setting up a workspace and equipment for employees is implied to be the employer’s responsibility.