General summary on how the domestic labour law is applied in Kenya

2.  The purpose of the Act: see the Preamble
“An Act of Parliament to repeal the Employment
Act, declare and define the fundamental rights
of employees, to provide basic conditions of
employment of employees, to regulate
employment of children, and to provide for
matters connected with the foregoing”

3.  The Application of the EA 2007
SECTION 3
 Applies to all employees employed by an
employer
 Exceptions and excluded employees: section
3(2); section 3(4) and (5)
 The Act binds the Government – section 3(3)
 Provisions of the Act – constitute minimum
terms and conditions of employment; any
agreement to relinquish vary or amend terms
shall be null and void

4. PRINCIPLE 1: Prohibition against Forced Labour
– section 4
 What is forced labour?
ILO Forced Labour Convention (1930) No 29
“All work or service exacted from any person
under the menace of any penalty and for which
the said person has not offered himself
voluntarily” – article 2(1)
Menace of any penalty e.g. threat of violence,
physical confinement, denial of rights, etc

5.  See also ILO Convention No 105 (1957)
Abolition of Forced Labour Convention:
Forced Labour for political and economic
purposes or as a means of labour discipline or
as punishment for industrial action is
prohibited – article 1
Section 2 EA 2007: forced or compulsory labour
definition

6.  Forced or compulsory labour – closely linked
to the concepts of slavery, servitude,
trafficking, debt bondage
 Slavery: UN Slavery Convention, art. 1(1)
“The status or condition of a person over whom
any or all powers attaching to the right of
ownership are attached.”
Conceptually it is more than forced labour – all
slavery is forced labour, but not all forced
labour is slavery.

7.  Slavery has also been defined by the ILO as
“situations of exploitation that a person cannot
refuse or leave because of threats, violence,
coercion, deception and/or abuse of power.”

8.  The concept of ownership is central to slavery
– the slave has no rights, no dignity – the
slave is inferior; control over the slave’s life –
marriage, relationships, food, clothes,
education, religion, healthcare, etc
 The slave master can lend, sell, exchange the
slave without restraint
See: “Maids for Sale: Sillicon Valley’s Online
Slave Market”
https://www.youtube.com/watch?v=Qxz-
vmbFXd4

9.  In some parts of Africa e.g. Mali, Niger,
Mauritania, Eritrea – descent based slavery is
still practised – it is a caste based system of
slavery; maternal
 See the Slave Markets in Libya – migrants
being auctioned off:
https://www.youtube.com/watch?v=9JX6DC4
Ajio
 Africa has the highest rate of modern day
slavery – 7 victims for every 1000 people

10.  See the Global Slavery Index
 Modern day types of slavery (is this an emotive
term) include:
a. Trafficking of workers for sex work, domestic
work, etc
See BBC Documentary “Imported for My Body: The
African Women Trafficked to India for Sex”
https://www.youtube.com/watch?v=0vDe6rUFs90
b. Forced marriages
c. Armed conflict/forced conscription into armed
service e.g. in Eritrea under President Afwerki
d. Forced migration/people smuggling

11. Human Trafficking:
Definition: see the UN Trafficking Protocol (Protocol to
Prevent, Suppress and Punish Trafficking in Persons)
“The recruitment, transportation, transfer, harbouring or
receipt of persons by means of threat or use of force or
other forms of coercion or abduction or fraud or
deception or abuse of power or the giving or receiving
of payments or benefits to achieve the consent of a
person having control over another person for the
purposes of exploitation”

12.  Exploitation – see article 3 of the Protocol
 See also the Counter – Trafficking in Persons
Act Kenya (Act No 8 of 2010)

13.  Debt Bondage/Bonded Labour
Definition:
“status or condition arising from a pledge by a
debtor of his personal services or of those of a
person under his control as security for a debt,
if the value of those services as reasonably
assessed is not applied towards the liquidation
of the debt or the length and nature of those
services are not respectively limited and
defined.”

14.  There is an artificial inflation of the debt e.g.
exorbitant interest
 The debt is not restricted in terms of time
This happens in many Arab countries when they
recruit labour from Africans
 Worker has to repay the costs of recruitment
and travel
 Work is told to do other work other than that
for which they were recruited

15.  Extra hours are not valued or paid
 Extra costs are loaded onto the debt e.g.
payment for room, medical attention, food,
etc
 If the worker dies before the debt is paid the
employer may insist that the children must
work to pay off the debt

16.  QUESTION: How can Labour Migration Policies
be refined in order to prevent these
exploitations of workers in Kenya? What
strategies can be employed?
Note: There are certain types of labour which
would NOT be considered forced or compulsory
labour – section 4(2)

17.  Some Kenyan jurisprudence:
 Aloise Onyango Odhiambo & 2 others v AG &
Commissioner General of Prisons (2019) eklr
 Daudi Haji v Kenya Ports Authority (2013) Eklr
 Rashid Odhiambo Allogoh & 245 others v
Haco Industries Ltd (2015) eklr
 Didovsky Igor & 11 others v International Bulk
Carrier Spa & 2 others (2015) eklr

18.  Jonathan Spanglar v Centre for African Family
Studies (2017) eklr: see paras 112 – 114: the
Court was of the view that failure to pay an
employee their dues was tantamount to forced
labour
Para 113: “When a salary is not paid for work done
– an employee becomes anxious, demoralised; each
day comes with bills and distress, and eventually
with delays and no pay at all, panic comes in and an
employee is reduced to begging, scavenging from
fellow workers, friends and well wishers”

19. Para 114: “When such pay does not come for
days, weeks and months, yet the employee
faithfully continues to attend to work, such
continued work performance is no longer
voluntary. It is forced upon the employee with
the hope of pay and the arrears due.”

20. Para 115:
“Such vassalage is not by simple work that an
employee is held by force and made to work –
circumstances putting an employee in a
position that work stops being dignified but a
means to get arrears and due wage, such I find
to be in a series of what is servitude. The
continuation of work without pay and continued
allocation of work and additional duties as to
evade and avoid a redundancy even when one is
glaringly present, is forced labour.”

21. PRINCIPLE 2: Prohibition of Discrimination in
the Workplace
Section 5 EA 2007
Equality connotes that all individuals are
accorded equal opportunities to develop fully
the knowledge, skills and competencies that are
relevant to the economic activities that they
wish to pursue (CAPABILITIES APPROACH)
BUT CONSIDER: Does treating all workers
equally cause some form of inequality?

22.  Prohibition on discrimination falls within the
ambit of the concept of Fair Labour Practice –
article 41, CoK 2010.
See: Kiama Wangai v Egerton University (2016)
Eklr
See: Peter Wambugu Kariuki & 16 others v KARI
(2013) Eklr

23.  ILO Convention No 111 – Discrimination
(Employment and Occupation) Convention,
1958 defines discrimination as:
“any distinction, exclusion or preference made
on the basis of race, colour, sex, religion,
political opinion, national extraction or social
origin (among other characteristics) which as
the effect of nullifying or impairing equality of
opportunity and treatment in employment or
occupation.”

24.  Discrimination can be direct or indirect
 Direct Discrimination: laws, rules, policies and
practices explicitly cite a particular ground to
deny equal opportunity e.g. age, sex, religion, etc
 Indirect Discrimination: laws, rules, practices
prima face appear neutral but in practice lead to
exclusions e.g. requiring applicants to be ready
to travel to other countries at very short notice
See: Trusted Society of Human rights Alliance & 3
others v JSC & Ano (2016) eklr

25.  Section 5(1) – Obligation on the CS, labour
officers and the ELRC to promote equality in
employment, even for the migrant workers
and their families lawfully in Kenya
MIGRATION GOVERNANCE (international,
regional and even domestic migration)
 Section 5(2) – Obligation of the employer to
promote equal opportunity and to eliminate
discrimination

26.  Prohibited grounds of discrimination: section
3(a) – What about sexual orientation?
HIV Status: VMK v CUEA (Cause 1161 of 2010)
Race: David Wanjau Muhoro v Ol Pejeta
Ranching Ltd (Cause No 1813 of 2011)
Age: Kenya Union of Domestic Hotels,
Education Institutions and Allied Workers v MP
Shah Hospital (2018) eklr

27.  Pregnancy: GVM v Bank of Africa Kenya Ltd
(2013) Eklr
 Esther Nduati v Ofyke Limited Harris Tavern
(2019) eklr
 Mercy Gakii Nabea v Malindi Management
Strategy Ltd (2019) eklr
 Disability: Juliet Mwongela Muema v Smollan
Kenya Ltd (Cause No 104 OF 2017) –
reasonable accommodation

28.  The question of Affirmative Action (AA):
Positive Discrimination?
 AA means the attempt to achieve job equity
for persons from designated groups
 The Challenges with using AA
 What are the legal standards to be used for
AA?
 WHO has to prove the importance of the AA?

29.  NOTE: The principle of affirmative action
must give benefits to the designated
employee which are proportional to the goal
of equality.
 Granting of extravagant benefits that
disproportionately enhance the members of
that group is not affirmative action e.g. it is
not affirmative action to give a job to a
person who is incapable of performing the
job

30.  The Question of Inherent Requirement of the
Job
 An inherent requirement: a permanent and
essential quality or attitude needed for the
performance of the job – if that requirement
is not present then the job cannot be done

31.  Advise M in this scenario:
M is a 30 year old single lady who is a youth pastor
at her local church. She is also the director of the
“Purity Pays” program for high school and college
girls at church. She gets into a relationship and
several months later, she falls pregnant. The
Church Board decides to terminate her services as a
pastor. She is considering taking legal action for
wrongful dismissal and discrimination based on
pregnancy. Advise M

32.  See Hoffman v South African Airlines (CCT
17/00)
Facts: H applied for job as cabin attendant
He went through various selection processes
and was found suitable
He had to undergo a pre-employment medical
examination which included blood test for HIV
Medical exam found him physically fit but blood
test showed he was HIV positive

33.  He was thus informed that he could not be
employed as cabin attendant due to his HIV
positive status
 See the arguments of SAA:
 Crew had to be fit for world – wide travel
 Crew had to be inoculated against yellow
fever – HIV positive persons could not be
inoculated because of adverse reactions

34.  HIV positive crew could contract
opportunistic infections and also would not
be able to perform emergency first aid
procedures on flights
QUESTION: Do you think that these arguments
are sufficient to justify the inherent requirement
question?
What do you think the Constitutional Court of
South Africa decided?

35.  EQUAL PAY FOR WORK OF EQUAL VALUE – section
5(5)
Does not necessarily mean equal pay for the same
work – equal value needs to be assessed and
determined using objective standards
In David Wanjau Muhoro v Ol Pejeta case – serious
salary disparities between the whites and the blacks
Pay increment: whites received 200% raise while the
claimant only got 28.7% raise with no regard to
qualifications
See also: Sollo Nzuki v SRC & 2 others (2019) eklr

36.  See ILO Guide on Equal Pay (2013)
 See also the Equal Remuneration Convention
 Pay disparity should be permitted when there
are objective differences in the value of work
to be performed
 Salaries of officers in the same rank may earn
different salaries due to seniority and
experience

37.  Ways of Job Evaluation
 Global or Ranking Method: Ranking based on
the importance of the job requirements
 Analytical job Evaluation method: breaks
down jobs into components or factors e.g.
skills, qualifications, etc (a numerical value
placed)
 The Paterson Model of Evaluation

38.  This system grades jobs according to 2 main
factors:
a. How many decisions a worker has to make in
his or her job
b. The importance of those decisions in the
running of the organisation

39.  There are 6 levels of decision making:
BAND A: Defined decisions – unskilled workers
BAND B: Automatic decisions – semi-skilled
workers
BAND C – Routine decisions – skilled
BAND D – Interpretive decisions – middle
management
BAND E – Programming decisions – senior middle
management
BAND F – Policy Making decisions – Top
Management

40.  Each band has sub – grades that are
dependant on:
a. Variety and complexity of the tasks
b. Length of the task
c. Pressure of the task
d. Precision
see UASU v SRC & Ano (2019) Eklr (Petition No
65 of 2017)

41.  Note: The question of equal pay for work of
equal value is also enshrined in the COK 2010 –
Article 41
 See also Article 7(a) of the ICESCR
 See also General Comment No 23(2016) on the
right to just and favourable conditions of work
Fair Remuneration – depends on a non –
exhaustive list of objective criteria: should reflect
output, responsibilities, level of skill, education,
impact on health and safety, hazards, impact on
workers personal and family life, precarious work,
mitigation for lack of job security

42.  Fairness as a concept should also reflect
upon termination of employment – employees
should be paid all their dues
 Fairness also means that pay is regular,
timely and in full
QUESTION: What is the Role of the SRC in
achieving pay equity in Kenya? What is the role
of the SRC in collective bargaining? – allowances
in the public sector in the light of a ballooning
wage bill

43. PRINCIPLE 3: Prohibition on Sexual Harassment
– section 6
ILO Definition: sex based behaviour that is
unwelcome and offensive to its recipient.
 Usually seen as sex discrimination
 Also seen as the institutionalisation of sexual
subordination of one sex to another in the
workplace

44.  Can take two forms:
a. Quid pro quo – when a job, benefit,
promotion is made conditional on the victim
acceding to the demands to engage in some
sexual conduct – section 6(1)(a)
b. Hostile working environment – creating
conditions that intimidate or humiliate –
section 6(1)(d)

45.  QUESTION: What is the place of dressing in
sexual harassment?
 Section 6(2) – an employer who employs 20 or
more employees shall after consulting with the
employees or their representatives issue a policy
statement on sexual harassment
 Content of the policy – section 6(3)
 Requirement for sensitisation and awareness of
the policy – section 6(4)
 Note: the complexities of the way in which this
policy is framed

46.  Jurisprudence:
See: JWN v Securex Agencies (K) Ltd (2018) Eklr
– failure to deal with allegations of a sexual
nature in a confidential and private manner
See: NML v Petrausch (2015) Eklr – Domestic
worker; pinching of buttocks, breasts, etc
See: PO v Board of Trustees, AF; BLH and RJKC
(Cause 927 of 2010)

47. See: MWN v MFS (Cause No 268 of 2013)
See: EDK v KU (Cause 1715 of 2011)
See: Lydiah Mongina Mokaya v St Leonards
Maternity Nursing Home Ltd (Cause 53 of
2017) – the court observed the difficulty of
proving sexual harassment cases

48. THE END
Thank you for your Attention