The government has suffered a setback after the Court of Appeal upheld a decision by the Employment and Labour Relations Court declaring the Teachers Service Commission (TSC) internship programme policy null and void.
In the judgment, three Court of Appeal judges held that although the TSC has the authority to engage trained, qualified and registered teachers as interns, it can only do so under an internship policy that complies with constitutional requirements.
“Only to that extent does the appeal succeed. We uphold the declaration by the ELRC that Circular TSC/DS/RECRUIT/ADVERT/18A/VOL.II dated January 4, 2023 and the subsequent internship contracts contravened the provisions of the Constitution,” the judges stated.
Junior school teachers, through their union, the Kenya Union of Post Primary Education Teachers (KUPPET), termed the ruling historic.
“The Court of Appeal of Kenya delivered a landmark ruling on our 2023 case challenging the internship programme implemented by the TSC. The court held that while TSC has the legal authority to engage teachers as interns, the 2023 internship recruitment was unconstitutional because it discriminated against qualified teachers and lacked a proper legal framework,” said the union’s secretary Omari Omari.
Mr Omari said the ruling opens the door for the union to return to court to seek compensation for the period the teachers served under the internship arrangement.
“We shall pursue compensation on two fronts: monetary compensation and career progression compensation. Our teachers must be moved to the next job group since the years served under internship should be counted as years worked under TSC. As our 9,000 colleagues who were employed alongside us move to C3, all 2023 interns must also be moved to C3,” he said.
The commission had moved to the Court of Appeal after the ELRC declared the internship policy unconstitutional and therefore null and void.
The ELRC delivered its judgment on April 17, 2024, making several key findings. The court held that interns qualify as employees for purposes of employment law, noting that the Employment Act defines an employee to include an apprentice or indentured learner.
It further ruled that trained teachers duly registered by the TSC could not lawfully be engaged as interns. According to the court, teachers recruited under the internship programme were subjected to unfair treatment and discrimination because they were denied the terms and conditions of service ordinarily accorded to teachers employed by the commission at the entry level.
The Teachers Service Commission (TSC) headquarters in Nairobi.
Photo credit: File | Nation
The court also found that the TSC had not demonstrated any constitutional or statutory mandate to employ teachers under the designation of interns. It held that the commission’s mandate is to employ registered teachers and that it is not permissible to engage them in the disguised form of interns where no approved establishment exists.
The court concluded that the Forum for Good Governance and Human Rights, which had filed the petition, successfully demonstrated that the disguised employment of qualified teachers as interns amounted to unfair labour practices under the Constitution.
Before the appellate court, TSC argued that it possesses both constitutional and statutory authority to recruit, engage, deploy and manage teachers in Kenya, including determining the terms and conditions under which registered teachers may serve.
The commission maintained that its mandate in teacher management includes recruitment, deployment, discipline and termination, giving it discretion to introduce programmes such as teacher internships as part of managing the teaching workforce.
The commission further explained that its Teacher Internship Policy Guidelines define an internship as a structured period of work experience intended to give newly qualified teachers practical exposure to the profession for up to twelve months.
According to the commission, the programme was designed to allow unemployed trained teachers to gain guided practice and practical teaching skills while improving their competitiveness in the labour market.
The commission insisted that teacher interns are distinct from teachers employed on permanent and pensionable terms. It described interns as newly trained but inexperienced teachers who require practical workplace exposure before securing full employment.
On that basis, it argued that internship engagements should not automatically attract the same pay and conditions as regular employment.
However, the Forum for Good Governance and Human Rights contended that the circular in question sought to recruit 21,550 registered teachers as interns, even though they were already fully qualified and licensed to practise. The organisation further noted that the commission recruited two groups of teachers for junior school: 9,000 teachers on permanent and pensionable terms and 21,550 as interns, despite having similar qualifications.
It argued that the commission failed to explain why one group was subjected to an internship while the other was not. The organisation argued that engaging qualified teachers as interns while employing others with similar credentials on permanent terms amounted to discrimination and unfair labour practices.
In its determination, the Court of Appeal held that the central issue in the dispute was whether the law permits a trained, qualified and duly registered teacher to serve as an intern and, if so, under what circumstances such an arrangement would be lawful.
“Any internship policy conceived and implemented by TSC must not be an instrument of oppression or discrimination and must conform with constitutional imperatives,” the court said.
The judges concluded that the absence of clear criteria to justify the distinction between teachers employed on permanent terms and those engaged as interns raised serious concerns of discrimination and unfair treatment.
