Quote from Lawyer on August 15, 2025, 8:30 am

In Kenya, workplace safety is a fundamental right enshrined in law, ensuring employees can perform their duties without risking their health or lives. The Occupational Safety and Health Act, 2007 (OSHA 2007) is the cornerstone legislation governing workplace safety, providing robust protections for workers who refuse hazardous tasks. This article explores the legal framework, procedures for reporting unsafe conditions, protections against employer retaliation, and real-world applications in high-risk sectors like construction.

Employee Rights Under the Occupational Safety and Health Act, 2007

OSHA 2007 establishes a clear framework for ensuring safe and healthy working conditions across all industries in Kenya. One of its key provisions is the right of employees to refuse work that poses a significant risk to their health or safety. Section 26 of the Act explicitly allows workers to withdraw from situations they reasonably believe present an imminent or serious danger to their life or health, without facing disciplinary action or loss of employment.

This right is grounded in the principle that no employee should be compelled to work in conditions that could lead to injury, illness, or death. The law mandates that employers provide a safe working environment, including proper equipment, training, and risk mitigation measures. If these standards are not met, employees are empowered to take action to protect themselves.

Key Provisions of OSHA 2007

• Right to Refuse Unsafe Work: Employees can refuse to perform tasks that pose a serious and imminent danger, provided their belief is reasonable and based on observable conditions.

• Employer Responsibilities: Employers must ensure workplaces are free from hazards, provide personal protective equipment (PPE), and conduct regular risk assessments.

• Non-Retaliation Clause: Employers are prohibited from penalizing workers for exercising their right to refuse unsafe work or for reporting hazardous conditions.

• Duty to Report: Employees are encouraged to report unsafe conditions to their supervisors or directly to the Directorate of Occupational Safety and Health Services (DOSHS) for investigation.

These provisions create a balance between worker safety and operational needs, ensuring employees can advocate for their well-being without fear of repercussions.

Procedures for Reporting Unsafe Conditions

When an employee identifies a hazardous work condition, OSHA 2007 outlines a structured process for addressing the issue. Following these steps ensures that concerns are documented and resolved effectively:

1. Notify the Supervisor: Employees should first inform their immediate supervisor or employer about the unsafe condition. This allows the employer an opportunity to rectify the situation promptly.

2. Document the Hazard: Workers should keep detailed records of the unsafe condition, including photographs, descriptions, and any relevant communications with the employer.

3. Escalate to DOSHS: If the employer fails to address the hazard or retaliates against the employee, the matter can be reported to the Directorate of Occupational Safety and Health Services. DOSHS is responsible for enforcing OSHA 2007 and can conduct workplace inspections, issue improvement notices, or impose penalties on non-compliant employers.

4. File a Formal Complaint: Employees can submit a written complaint to DOSHS, detailing the nature of the hazard, the employer’s response, and any retaliation experienced. DOSHS maintains a confidential reporting system to protect whistleblowers.

5. Seek Union Support: For workers in unionized workplaces, trade unions can provide additional support, including legal advice and representation during disputes.

DOSHS plays a critical role in investigating complaints and ensuring compliance. The directorate has the authority to order employers to correct unsafe conditions, suspend operations in extreme cases, or prosecute non-compliant employers. Workers can contact DOSHS through regional offices or the national headquarters in Nairobi for assistance.

Protections Against Employer Retaliation

One of the biggest concerns for employees refusing unsafe work is the risk of retaliation, such as demotion, termination, or harassment. OSHA 2007 explicitly prohibits such actions under Section 26(2), stating that no employee shall be disadvantaged for exercising their rights under the Act. Retaliation can also violate the Employment Act, 2007, which safeguards workers against unfair dismissal or discriminatory treatment.

If retaliation occurs, employees have several legal avenues for recourse:

• Filing a Complaint with DOSHS: The directorate can investigate claims of retaliation and impose sanctions on employers.

• Pursuing Legal Action: Workers can seek remedies through the Employment and Labour Relations Court, which has jurisdiction over workplace disputes. Remedies may include reinstatement, compensation for lost wages, or damages for unfair treatment.

• Engaging Trade Unions: Unions can advocate on behalf of workers, negotiate with employers, or escalate cases to relevant authorities.

These protections ensure that employees can assert their rights without fear of losing their livelihoods, fostering a culture of accountability in workplace safety.

Case Studies from High-Risk Sectors: Construction

The construction industry in Kenya is one of the most hazardous sectors, with frequent incidents of falls, equipment-related injuries, and exposure to dangerous substances. Below are two anonymized case studies illustrating how workers have utilized OSHA 2007 to address unsafe conditions.

Case Study 1: Scaffolding Collapse Risk

In a Nairobi construction site, workers noticed that scaffolding was improperly erected, lacking guardrails and showing signs of structural weakness. Fearing a collapse, several workers refused to climb the scaffolding and reported the issue to their supervisor. The employer initially threatened disciplinary action, citing project deadlines. The workers escalated the matter to DOSHS, which conducted an inspection and confirmed the scaffolding violated safety standards. DOSHS issued an improvement notice, requiring the employer to install proper guardrails and reinforce the structure. The workers faced no further retaliation, and the site was brought into compliance, preventing potential injuries.

Case Study 2: Lack of Protective Equipment

In a Mombasa construction project, workers handling cement and other hazardous materials were not provided with adequate PPE, such as gloves, masks, and safety boots. Several workers developed skin irritations and respiratory issues, prompting them to refuse work until proper equipment was provided. The employer dismissed two workers for “insubordination.” With support from their union, the workers reported the issue to DOSHS and filed a case with the Employment and Labour Relations Court. The court ruled in their favor, ordering reinstatement and compensation. DOSHS also fined the employer for failing to provide PPE and mandated regular safety audits.

These cases highlight the practical application of OSHA 2007 in protecting workers and holding employers accountable. They also underscore the importance of collective action, such as union involvement, in high-risk industries.

Challenges and Considerations

Despite the robust framework of OSHA 2007, challenges remain in ensuring full compliance. Many workers, particularly in informal or low-wage sectors, may be unaware of their rights or fear retaliation due to job insecurity. Small and medium-sized enterprises may lack the resources to implement comprehensive safety measures, leading to persistent hazards. Additionally, DOSHS faces resource constraints, which can delay inspections and enforcement actions.

To address these challenges, employees should:

• Educate themselves on their rights under OSHA 2007 and related laws.

• Maintain clear documentation of unsafe conditions and employer responses.

• Seek support from trade unions or legal professionals when facing complex disputes.

Employers, on the other hand, can proactively reduce risks by conducting regular safety training, investing in proper equipment, and fostering open communication with workers about safety concerns.

Conclusion

The Occupational Safety and Health Act, 2007, provides a strong legal foundation for protecting Kenyan workers from hazardous conditions. By empowering employees to refuse unsafe work, report hazards to DOSHS, and seek redress for retaliation, the Act promotes a culture of safety and accountability. High-risk sectors like construction demonstrate both the challenges and successes of implementing these protections. Workers who understand their rights and follow proper procedures can effectively advocate for safer workplaces, while employers who prioritize compliance can avoid legal and financial consequences.

For expert guidance, contact us at +254 716 808 104 or info@lawguide.co.ke to ensure your workplace rights are protected.