Articles

Challenging Workplace Discrimination in Kenya’s Public Sector

Workplace discrimination remains a significant issue in Kenya’s public sector, undermining the principles of equality and fairness enshrined in the country’s legal framework. Employees in the public sector, including those in government ministries, parastatals, and other state institutions, may face unfair treatment based on grounds such as race, gender, disability, pregnancy, religion, or other characteristics. The Constitution of Kenya, 2010, and the Employment Act, 2007, provide robust protections against such discrimination, offering legal recourse for affected employees. This article explores the legal mechanisms available to challenge workplace discrimination in Kenya’s public sector, supported by recent case law, and provides practical steps for employees seeking justice.

Legal Framework for Addressing Workplace Discrimination

The Constitution of Kenya, 2010

The Constitution of Kenya, 2010, is the supreme law of the land and establishes a strong foundation for combating discrimination. Article 27 is the cornerstone of equality and non-discrimination, explicitly prohibiting discrimination on various grounds. Key provisions include:

  • Article 27(3): Guarantees women and men the right to equal treatment and opportunities in political, economic, cultural, and social spheres.

  • Article 27(4): Prohibits the State from discriminating, directly or indirectly, against any person on grounds including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language, or birth.

  • Article 27(5): Extends this prohibition to individuals, preventing private persons or entities from discriminating on the same grounds.

Additionally, Article 41 of the Constitution ensures the right to fair labor practices, which includes protection against unfair treatment in employment. These provisions are particularly relevant in the public sector, where the State is expected to model exemplary conduct in upholding constitutional principles.

The Employment Act, 2007

The Employment Act, 2007, complements the Constitution by providing specific protections against workplace discrimination. Section 5 of the Act is central to these protections:

  • Section 5(2): Mandates employers to promote equal opportunity in employment and eliminate discrimination in any employment policy or practice.

  • Section 5(3): Prohibits direct or indirect discrimination against an employee or prospective employee on grounds such as race, color, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status, or HIV status. This section also covers discrimination in recruitment, training, promotion, terms and conditions of employment, and termination.

  • Section 5(6): Places the burden of proof on the employer to demonstrate that no discrimination occurred when a claim is raised.

The Act also addresses harassment, including sexual harassment (Section 6), and ensures that employers maintain a workplace free from discriminatory practices. For public sector employees, these provisions are critical, as they apply to all employers, including government entities.

Additional Legal Protections

Beyond the Constitution and the Employment Act, other laws reinforce protections against discrimination:

  • Persons with Disabilities Act, 2003: Ensures non-discrimination in employment for persons with disabilities and mandates a five percent quota for persons with disabilities in public and private sector employment.

  • Labour Relations Act, 2007: Protects employees’ rights to join trade unions and engage in collective bargaining, which can be a tool to address discriminatory practices.

  • Data Protection Act, 2019: Safeguards employee privacy, ensuring that personal data is not used to discriminate, such as in cases involving health status or HIV status.

Legal Recourse for Workplace Discrimination

Employees in Kenya’s public sector who experience discrimination have several avenues for redress. The process typically involves internal mechanisms, followed by external legal action if necessary.

Step 1: Internal Reporting and Grievance Mechanisms

Employees should first report discriminatory incidents to their human resources department or designated workplace authority. Public sector institutions often have internal policies or codes of conduct that outline procedures for addressing discrimination. For instance, employees can lodge complaints with their supervisors, human resources officers, or ethics and compliance units. These internal mechanisms aim to resolve issues informally, but they must comply with the Employment Act’s requirements for fair treatment.

If the issue involves harassment, such as sexual harassment, employees should document the incidents and report them promptly. Employers are legally obligated to investigate and address such complaints thoroughly. Failure to do so may strengthen an employee’s case in court.

Step 2: Filing a Claim with the Employment and Labour Relations Court

If internal mechanisms fail to resolve the issue, employees can escalate the matter to the Employment and Labour Relations Court (ELRC), which has the same status as the High Court and specializes in employment disputes. The ELRC handles claims related to discrimination, unfair dismissal, and other labor violations. Employees must file their claim within the prescribed time limit, typically three years from the date of the discriminatory act, as per the Employment Act.

To initiate a claim, employees should:

  1. Gather Evidence: Collect documentation such as employment contracts, payslips, performance reviews, emails, or witness statements that demonstrate discriminatory treatment.

  2. Engage Legal Counsel: Consult an advocate specializing in employment law to draft and file the claim. Legal representation is crucial for navigating complex court procedures.

  3. File the Claim: Submit a statement of claim to the ELRC, outlining the nature of the discrimination, the legal provisions violated, and the remedies sought.

The ELRC has broad powers to grant remedies under Section 49 of the Employment Act, including:

  • Compensation equivalent to wages the employee would have earned during the notice period.

  • Damages for losses suffered due to discrimination or unfair termination.

  • Reinstatement or re-engagement of the employee.

  • Orders directing the employer to prevent future discrimination.

Step 3: Alternative Dispute Resolution

In some cases, disputes may be resolved through mediation or conciliation, facilitated by labor officers or trade unions. The Labour Relations Act, 2007, encourages alternative dispute resolution to reduce the burden on courts. Public sector employees who are union members can leverage their trade unions to negotiate on their behalf or represent them in disputes.

Step 4: Other Recourses

Employees may also report discrimination to regulatory bodies such as the National Council for Persons with Disabilities (for disability-related discrimination) or the Kenya National Commission on Human Rights (KNCHR) for broader human rights violations. These bodies can investigate and recommend corrective actions, though they may not have the binding authority of the ELRC.

Recent Case Law on Workplace Discrimination

Recent cases in Kenya’s Employment and Labour Relations Court illustrate how the legal framework is applied to combat workplace discrimination in the public sector. Below are two notable examples:

Case 1: Erastus K Gitonga & 4 others v National Environmental Management Authority (2019)

In this case, advocates working in the public service at the National Environmental Management Authority (NEMA) claimed discrimination due to the denial of non-practicing or prosecutorial allowances, which were paid to other employees performing similar roles. The ELRC found that paying different wages for work of equal value constituted discrimination under Section 5 of the Employment Act. The court emphasized that Article 27 of the Constitution guarantees equal treatment and that the employer’s failure to justify the differential treatment violated fair labor practices. The claimants were awarded compensation and the allowances they were entitled to.

This case highlights the importance of equal pay for equal work and the court’s willingness to hold public sector employers accountable for discriminatory practices.

Case 2: V.M.K v Catholic University of Eastern Africa (2013)

Although this case involved a private institution, its principles are relevant to public sector employment. The claimant alleged discrimination based on sex, HIV status, and pregnancy, which led to her termination. The ELRC ruled that the termination violated Article 27 of the Constitution and Section 5 of the Employment Act, as the employer failed to disprove the allegations of discrimination. The court awarded general and exemplary damages, citing the violation of the claimant’s dignity and rights.

This case underscores the judiciary’s role in protecting employees from discrimination based on protected characteristics, such as health status or pregnancy, and serves as a precedent for public sector cases involving similar grounds.

Practical Steps for Employees

To effectively challenge workplace discrimination, public sector employees should take the following steps:

  1. Understand Your Rights: Familiarize yourself with the protections under the Constitution, Employment Act, and other relevant laws. Resources from legal firms or the KNCHR can provide guidance.

  2. Document Incidents: Keep detailed records of discriminatory acts, including dates, times, individuals involved, and any communications. This evidence is critical for building a case.

  3. Seek Support: Engage with trade unions, legal advocates, or organizations like the Federation of Kenya Employers (FKE) for advice and representation.

  4. Act Promptly: Adhere to time limits for filing claims, as delays may weaken your case.

  5. Promote Awareness: Advocate for workplace policies that promote diversity and inclusion, such as anti-discrimination training and clear reporting mechanisms.

Challenges and Recommendations

Despite the robust legal framework, challenges persist in addressing workplace discrimination in Kenya’s public sector:

  • Lack of Awareness: Many employees are unaware of their rights or the procedures for seeking redress.

  • Enforcement Gaps: Some public sector institutions fail to implement anti-discrimination policies effectively.

  • Cultural Barriers: Stigma around certain characteristics, such as disability or HIV status, can deter employees from reporting discrimination.

To address these challenges, public sector employers should:

  • Develop comprehensive anti-discrimination policies and employee handbooks.

  • Conduct regular training on diversity, inclusion, and workplace rights.

  • Ensure accessible reporting mechanisms and protect whistleblowers from retaliation.

  • Comply with statutory requirements, such as the five percent quota for persons with disabilities.

Employees, on the other hand, should stay informed about their rights and seek legal advice promptly when faced with discrimination.

Conclusion

Challenging workplace discrimination in Kenya’s public sector requires a clear understanding of the legal protections under the Constitution of Kenya, 2010, and the Employment Act, 2007. These laws provide a strong framework for addressing unfair treatment, supported by the Employment and Labour Relations Court’s authority to grant remedies such as compensation and reinstatement. Recent cases, such as those involving NEMA and the Catholic University of Eastern Africa, demonstrate the judiciary’s commitment to upholding equality and fairness. By leveraging internal mechanisms, seeking legal recourse, and advocating for inclusive workplace policies, public sector employees can effectively combat discrimination and promote a culture of diversity and respect.

Contact us at +254 716 808 104 or info@lawguide.co.ke for expert advice.