Hi Eric, I work in the hospitality industry where looks matter a lot. After giving birth, I gained some weight.
Since I resumed work, the attitude of my supervisor has changed. I was even asked to lose weight if I intended to keep my job. Can I be fired for gaining weight or should I sue for discrimination?
Discrimination manifests in many different ways but sounds slanderous when loaded with gender stereotypic connotations.
While childbearing may be optional, rearing is not, whether directly or through delegation.
Both are biological facts that do not require ostracisation of any kind, but compassion.
Article 27 (5) of the Constitution behoves all people, state and nonstate agencies not to subject anyone to discrimination owing to their race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. This forms the first part of your recourse.
Your employer’s attitude (real or imagined) seems to gravitate towards the termination of your services.
On the basis that discrimination is unconstitutional, it is important to understand the type and terms of your contract.
While it is not clear the nature of your employment, it should be known by readers that the Employment Act anticipates and addresses most issues prevailing in the human resource management space, in pursuance of Article 41 of the Constitution that affords every person the right to fair labour practices.
Termination of employment as stipulated in the Employment Act can be executed in five ways; first, an employer can give the employee a notice of intention to terminate the contract.
This must be supported by reasons for the intended termination; secondly, an employee can also give an employer notice to terminate their time of service on the employer’s payroll; thirdly, an employer and employee can agree not to need each other’s service; fourthly, an employer can terminate one’s employment without notice in what is known as summary dismissal stipulated at Section 44 of the Employment Act: and fifth, is where an employment contract lapses either by time, or circumstances such as the death of employee or insolvency on the part of the employer.
On what grounds would your employer, therefore, terminate your services?
Section 45 (2) and 46 of the Employment Act prohibits an employer from firing an employee on flimsy grounds as like or dislike.
On the contrary, the law requires the employer to furnish the employee with reasons culminating in a termination.
Failure to do so amounts to unfair administrative action. In context, the law emphasizes misconduct, poor performance, physical incapacity, and employer’s operational requirement like retrenchment or participation in an illegal strike, as viable reasons to occasion a termination.
However, on summary dismissal, it is the duty of the employer not to be arbitrary and allege on the part of the employee, gross misconduct; absenteeism from the place appointed for performance of work; intoxication during working hours to the extent of rendering oneself incapable to perform; wilful negligence to perform any work assigned; use of abusive or insulting language; knowingly failing to obey a lawful command; being arrested for a cognizable offence punishable by imprisonment and failing to secure liberty on bond or bail within fourteen (14) days; and, committing or being reasonably suspected to have committed an offence.
It is therefore inferred from Article 27 (5) and 41 (2-b) that an employer cannot dismiss an employee on grounds such as pregnancy or reasons connected to pregnancy; being on leave or proposal to proceed on leave; membership or proposed membership to a trade union; participation or proposed participation to activities of a trade union; refusal or proposed refusal to join or withdraw from a trade union; colour, race tribe, sex, religion, political opinion or affiliation, nationality, social origin, marital status, HIV status or disability; initiation of legal proceedings against an employer except where it is shown the complaint is irresponsible and lacks merit; and participation in a lawful strike.
File report at the labour office
The legal refuge is in Article 47 of the Constitution which provides for the right to fair administrative action.
It states in Sub-Article 1, that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
Sub-article 2 offers that a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
Should your services be terminated the Labour and Employment Court can be moved as an avenue through which to canvass the apparent dismissal.
Before proceeding to court report the same to the Labour office near you for record and possible mitigation.
Should this fail, the court will likely try to understand the terms of your employment contract, especially the finer details that you and your employer committed to observing.
It may further seek to appraise itself of how far such termination undignified you against Article 28 of the Constitution while determining whether it contravened Articles 27 and 41, all geared to establish unfair administrative action.
Remember the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person.
Put your evidence together, as expected by Section 107-109 of the Evidence Act.
Eric Mukoya has over 17 years of experience working in the social justice sector. He’s the executive director of the Undugu Society of Kenya. Legal query? Email [email protected]
