Sacking of a female employee on the grounds of being an unwed mother fundamentally undermines the purpose of the Employment Act.
Dear Wakili,
I work in a Christian organisation. I learnt that my colleague was fired for being an unwed mother, isn’t that discrimination?
Dear concerned colleague,
To thoroughly understand and critically reflect on the issue of employment discrimination, it is essential to examine the foundational principles that define Kenya not only as a nation, but also as a model of inclusion. Referring to the Employment Act of 2007 without considering Articles 10, 27, 28, and 43 of the Kenyan Constitution undermines the comprehensive legal reasoning necessary for the promotion and maintenance of justice.
Kenya has made a formal commitment to the Sustainable Development Goals, particularly the principle of "Leave No One Behind." Consequently, actions by employers that undermine this commitment diminish the country's capacity to realise these objectives. Article 10(1) and (2) of the Constitution obligates the state, public officials, and both legal and non-legal entities to conduct their affairs in a manner rooted in values such as patriotism, national unity, the rule of law, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, and the protection of marginalised groups. Employers and organisational leaders are therefore required to uphold the highest standards of good governance, integrity, transparency, accountability, and sustainable development.
The alleged dismissal of your colleague on the grounds of being an unwed mother fundamentally undermines the purpose of the Employment Act and highlights unprofessional conduct by the employer. The Employment Act is constitutionally anchored in Article 2, Clause (4), which requires all laws to be consistent with the Constitution and to reject any form of injustice or discrimination. The primary objective of the Employment Act is to foster a work environment characterised by inclusion and respect for human dignity.
Employment Act
Section 5(3a) of the Employment Act, empowered by Article 27(4) of the Constitution, explicitly prohibits employers from engaging in either direct or indirect discrimination against current or prospective employees on the basis of race, color, religion, disability, pregnancy, marital status, mental status (including HIV status), political or other opinion, nationality, or ethnic and social origin. Subsection (b) extends this mandate by requiring employers to actively promote inclusion throughout all stages of employment, including recruitment, training, promotion, transition, and termination. These principles must also be reflected in the terms and conditions of each specific job position. It is therefore a fundamental principle that all employment-related issues should be addressed with a clear commitment to inclusion and deliberative intent.
A failure to foster inclusion within the workplace results in significant social and legal consequences. Firstly, Christian singles employed in such an organisation may experience heightened insecurity, despite the protections for physical and emotional safety mandated by Article 29. Secondly, this lack of inclusion fosters social discomfort, which can become embedded in the organisational culture, ultimately allowing religious affiliation to influence employment decisions. This contravenes the freedoms guaranteed to all individuals under Article 32(2), and disregards Article 32(3), which prohibits denying any person access to institutions, employment, or facilities on the basis of religious belief.
In Cause 1620 of 2018, Justice Manani, presiding over the case of Ojung’a v Healthlink Matcare Ltd t/a Nairobi Women Hospital, found that the respondent had violated the claimant’s right to employment by engaging in discriminatory practices motivated by religious intolerance. Justice Manani observed: “The evidence on record demonstrates that the Respondent discriminated against the Claimant on account of her religion.
Claimant’s freedom
The Respondent paid lip service to the Claimant’s freedom of worship by requiring her to work on certain Saturdays, despite being aware that Saturday was the Claimant’s designated worship day. Conversely, the Respondent protected Sunday as a rest day for other employees whose worship day was Sunday. Accordingly, I declare the Respondent’s handling of the Claimant’s worship day as discriminatory. I also declare the conduct of the Respondent in this respect as a violation of the Claimant’s freedom of religion.”
This case also raises important questions regarding due process and the preservation of human dignity. It is essential to determine whether the employer adhered to these fundamental principles in the resolution of the dispute. The significance of this inquiry is grounded in the guarantees provided by Articles 47 and 28 of the Constitution, which establish the right to fair administrative action as a means of safeguarding inherent human dignity. In this context, any violation on the basis of religion would be particularly egregious.
Although the facts of the case remain unclear, dismissal from employment on the grounds of religious differences is a serious legal violation, particularly in a country that upholds respect for diversity.
Such actions by an employer appear to contravene Articles 27 and 55 of the Constitution, which collectively mandate affirmative action measures to promote and institutionalise inclusion. It should be remembered as was clearly described by Justice Manani, limitation of any right within the Bill of Rights must only be done so in accordance with Article 24 of the Constitution.
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