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Universal Health Coverage (UHC) nurses from Coast counties demonstrate on the streets to demand better terms of employment.
A court has ordered the government to harmonise the salaries of nurses hired on contract by the Ministry of Health during the Covid-19 pandemic with those of their colleagues under permanent and pensionable terms.
In a strongly worded judgement delivered by the Employment and Labour Relations Court, Justice Stella Rutto said both the ministry and the Public Service Commission (PSC) were supposed to implement the “equal pay for equal work” principle in the remuneration of the two groups of staff.
The verdict comes weeks after President William Ruto announced that the universal health coverage (UHC) workers would be absorbed on permanent terms from this month.
While ruling on a petition filed by the Kenya National Union of Nurses in 2024, Justice Rutto said both the ministry and PSC had a legal obligation to ensure fairness even though “the workers may have accepted contractual terms that were less favourable”.
The court papers show that the PSC offered the 2,500 UHC nurses a consolidated salary package of Sh50,000 for diploma holders and Sh40,000 for certificate holders.
This was low compared to their counterparts hired under permanent terms as they earn Sh80,000 at entry level for certificate holders and Sh100,000 to Sh120,000 for diploma holders.
The court heard that the UHC nurses also had no allowances, such as nursing service, commuter, hardship, health risk, leave, and uniform allowances.
Justice Rutto declared that the pay disparity was in breach of the workers’ right to equality and freedom from discrimination as guaranteed under Article 27(5) of the Constitution and Section 5(3) of the Employment Act.
“The court finds that the respondents (Ministry of Health and PSC) have subjected the claimant’s members to pay discrimination as they have failed to demonstrate non-discriminatory reasons and justify the pay disparity,” said Justice Rutto.
“The remuneration ought to be equal for the staff in the same category performing the same work, despite their terms of engagement. Indeed, the respondents herein have not suggested or indicated that the work performed by the staff under the UHC programme is not of the same value as that performed by staff on permanent and pensionable terms,” she added.
The case had been opposed by the Health ministry, PSC, Council of Governors (CoG) and the National Treasury. The Health ministry said the PSC’s circular dated August 3, 2021 did not allow for translation of terms of service for employees who were not in the ministry’s establishment and were employed on a short-term special programme.
The nurses were hired on a three-year contract. According to the ministry, the PSC granted approval for renewal of the contracts for a further period of two years based on the lack of additional funding that would have been required to transition them into permanent and pensionable terms.
PSC, in its defence, said it was not aware of any consensus that was binding to both levels of government on the translation of the terms of the UHC workers under contract.
It stated that it was not legally possible for it to approve the absorption of the UHC nurses by the counties. In its view, any such approval would be ignored by the county governments with no legal consequences as it has no power to direct county governments.
“The claimant’s members were not subjected to discrimination. At the time [they] were appointed, they knew and fully appreciated the terms and remuneration attached to the contract,” said the CoG. It added that the absorption of the workers on a permanent basis would only be tenable once funds were transferred from the national government.
