Quote from Lawyer on June 5, 2025, 9:01 am

Workplace harassment, encompassing sexual harassment, bullying, and discrimination, poses a significant threat to a safe and productive work environment. In Kenya, robust legal frameworks, including the Employment Act, 2007, and the Constitution of Kenya, 2010, provide comprehensive protections against harassment and clear pathways for recourse. This article explores the types of workplace harassment, the legal protections available, the steps employees can take to address harassment, and the responsibilities of employers in ensuring a harassment-free workplace.

Legal Protections Against Workplace Harassment

Kenya’s legal system offers a multi-layered approach to combating workplace harassment, rooted in constitutional, statutory, and judicial provisions.

Constitutional Protections

The Constitution of Kenya, 2010, establishes a foundation for fair treatment in the workplace. Article 27 prohibits discrimination on grounds such as race, sex, pregnancy, marital status, health status, ethnic or social origin, age, disability, or religion. This provision ensures equal treatment and protection from discriminatory harassment. Additionally, Article 41 guarantees fair labor practices, which courts have interpreted to include the right to a workplace free from harassment of any form.

Employment Act, 2007

The Employment Act, 2007, is the cornerstone of workplace harassment protections in Kenya. Key provisions include:

• Section 6: Explicitly prohibits sexual harassment, defined as any unwanted conduct of a sexual nature that creates a hostile, intimidating, or offensive work environment. Employers with 20 or more employees are mandated to develop and implement a written sexual harassment policy, outlining procedures for reporting and addressing complaints.

• Section 5: Prohibits discrimination in recruitment, employment terms, promotions, or termination based on protected characteristics such as gender, disability, religion, or ethnicity.

• Section 7: Requires employers to ensure a safe and healthy work environment, which extends to protection from psychological harm caused by harassment or bullying.

Other Relevant Laws

Several other statutes complement the Employment Act in addressing workplace harassment:

• Labour Relations Act, 2007: Prohibits discrimination or harassment based on union membership or activities, safeguarding employees involved in trade unions from retaliatory harassment.

• Persons with Disabilities Act, 2003: Ensures equal employment opportunities for persons with disabilities and prohibits harassment or discrimination based on disability.

• Occupational Safety and Health Act, 2007: Mandates employers to provide safe working conditions, which courts have interpreted to include protection from psychological harm caused by harassment, such as bullying or intimidation.

Types of Workplace Harassment

Workplace harassment in Kenya manifests in various forms, each with distinct characteristics and legal implications:

1. Sexual Harassment: This includes unwanted sexual advances, inappropriate comments, gestures, or requests for sexual favors that create a hostile work environment. A notable case, Nathan Ogada Atiagaga v David Engineering Limited (ELRC), saw the Employment and Labour Relations Court (ELRC) award KES 2.7 million to an employee who faced constructive dismissal due to the employer’s failure to address sexual harassment by a supervisor.

2. Discrimination: Involves unequal treatment based on protected characteristics, such as denying promotions due to gender, ethnicity, or religion. Discriminatory practices violate both the Constitution and the Employment Act.

3. Bullying: Encompasses persistent intimidation, humiliation, or undermining behavior, such as assigning unfair workloads or setting unrealistic expectations to force resignation. While not explicitly defined in statute, bullying is addressed under the general duty to provide a safe work environment.

Steps for Employees Facing Harassment

Employees experiencing harassment have several avenues for recourse, both internal and external, to seek justice and remedies:

1. Report Internally: Employees should first utilize their employer’s harassment or grievance policy to report incidents to human resources (HR) or a supervisor. For workplaces with 20 or more employees, a written sexual harassment policy is mandatory under Section 6(2) of the Employment Act. Employees should document all incidents, including dates, times, witnesses, and details of the harassment, to build a strong case.

2. Seek Union Support: Employees who are members of a trade union can engage their union representative to negotiate with the employer or escalate the issue. The Labour Relations Act, 2007, protects unionized employees from harassment related to their union activities.

3. File a Complaint with a Labour Officer: Labour Officers, appointed under the Employment Act, can mediate workplace disputes and ensure employer compliance with anti-harassment laws. They provide a low-cost, accessible option for resolving conflicts.

4. Approach the National Gender and Equality Commission (NGEC): For harassment rooted in discrimination, such as gender or disability-based harassment, the NGEC can investigate complaints and recommend corrective actions, including policy changes or sanctions.

5. File a Claim with the Employment and Labour Relations Court (ELRC): If internal mechanisms or mediation fail, employees can file a claim with the ELRC within three years of the incident. Evidence such as emails, text messages, witness statements, or medical reports (for psychological harm) strengthens the case. The ELRC can award compensation, reinstatement, or other remedies.

6. Constitutional Petition: In severe cases involving violations of fundamental rights, such as persistent discrimination or harassment, employees can file a petition with the High Court’s Constitutional and Human Rights Division for redress.

Remedies for Workplace Harassment

The Employment Act, 2007, under Section 49, provides a range of remedies for employees who succeed in harassment claims:

• Compensation: Employees may receive up to 12 months’ salary for unfair dismissal or constructive dismissal caused by unaddressed harassment.

• Damages: Courts may award damages for breach of contract or psychological harm resulting from harassment.

• Reinstatement or Re-engagement: Employees may be restored to their original position or a comparable role, though this remedy is rarely granted.

• Injunctions: Courts can issue orders to stop ongoing harassing behavior or compel employers to comply with anti-harassment policies.

Employer Responsibilities

Employers in Kenya have a legal and ethical duty to prevent and address workplace harassment. Key responsibilities include:

• Policy Development: Employers with 20 or more employees must implement a written sexual harassment policy, as mandated by Section 6(2) of the Employment Act. This policy should outline reporting procedures, investigation processes, and disciplinary measures.

• Training and Awareness: Employers should conduct regular training sessions on harassment prevention, covering sexual harassment, discrimination, and bullying, to foster a respectful workplace culture.

• Prompt and Fair Investigations: Complaints must be investigated promptly, fairly, and confidentially to protect all parties involved.

• Data Protection Compliance: When handling harassment complaints involving personal data, employers must comply with the Data Protection Act, 2019, to safeguard employee privacy.

Practical Advice

For Employees

• Document Incidents: Keep detailed records of harassment incidents, including dates, times, locations, witnesses, and specific behaviors. This documentation is critical for internal complaints, mediation, or court proceedings.

• Report Promptly: Report harassment as soon as possible to ensure timely resolution and preserve evidence.

• Seek Legal Advice: Consult a lawyer to evaluate your case, understand your rights, and explore available remedies under Kenyan law.

For Employers

• Develop Robust Policies: Create and enforce clear anti-harassment policies that comply with the Employment Act and other relevant laws.

• Train Staff: Regular training on harassment prevention helps reduce incidents and demonstrates compliance with legal obligations.

• Engage Legal Expertise: Work with a lawyer to ensure policies and investigation processes meet legal standards, minimizing the risk of costly claims.

Conclusion

Workplace harassment, whether sexual, discriminatory, or bullying in nature, undermines employee well-being and organizational productivity. Kenya’s legal framework, anchored in the Constitution, the Employment Act, 2007, and other statutes, provides robust protections and remedies for affected employees. By understanding their rights and the available recourse, employees can take proactive steps to address harassment. Similarly, employers must prioritize compliance with anti-harassment laws to foster a safe and inclusive workplace.

For assistance with policy development, complaint investigations, or representation in the Employment and Labour Relations Court, contact us at +254 716 808 104 or via email at info@lawguide.co.ke. We are committed to safeguarding your rights and ensuring workplace compliance with Kenyan law.