My male peers earn double my pay for same work done; is this allowed in law?

Dear Vivian,

I am an accountant recently employed by a private firm. This makes me the only female among four junior accountants who joined at the same time. While going through our salary structure, however, I noticed that I am paid 50 per cent of what my male junior colleagues earn. Upon enquiry, I was informed that because I am a young mother, I am prone to unproductivity. Is this wage gap allowed by law?

Sharon Chelangat, Bomet

Dear Sharon,

What you are experiencing is referred to as the gender wage gap, which has been referred to as the difference between average gross hourly earnings of male-paid employees and female-paid employees as a percentage of average gross hourly earnings of male-paid employees. This has been categorised as a form of discrimination.

Notably, the courts in Kenya have had an input to this description. In the case of Barclays Bank of Kenya LTD & Another versus Gladys Muthoni & 20 Others, it stated that discrimination means unfair treatment or denial of normal privileges to persons because of their race, age and sex.

Thirteen years after the promulgation of the Constitution, which forbids gender discrimination, Kenyan women are still not receiving equal pay for equal work done. As a result, they have less spending power, have less to save and even less to put aside for their retirement.

According to the World Economic Forum report conducted in 2017, it was established that a Kenyan woman is paid Sh55 for every Sh100 paid to a man for doing a similar job.

While the above is the scenario, the law does not condone this form of discrimination. First, Article 27(3) of the Constitution stipulates the right to equal treatment between men and women in political, economic, cultural and social spheres. Article 41 of the same Constitution provides that every person should be accorded fair labour practices and fair remuneration for work done.

In addition, Section 5 of the Employment Act, 2007, details the principle of equal remuneration for work of equal value, between men and women, this is referred to as gender pay equity.

Further, this section provides that no employer shall discriminate, directly or indirectly, against an employee on the grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status.

On the issue of fairness in remuneration, courts have stated that the principle of equal remuneration for work of equal value should receive equal pay and that the principles of justice, equity and logic should be considered in considering whether an unfair labour practice has been committed.

On the importance of remuneration, the learned judge in the Kenyan case of Jonathan Spangler versus Centre for African Family Studies stated as follows: “Payment of a salary comes with that spring and gait towards the office to accomplish tasks.

“The job gives one a dignified self and a purpose to return each day to accomplish more. When a salary is not paid, an employee becomes anxious and demoralised, and denies him human dignity…”

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).