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Saturday, September 21, 2013

Sex Discrimination in the work place;

By Kate Kiama
Discrimination is defined in the Oxford Dictionary[1] as ‘the unjust or prejudicial treatment of different categories of people, especially on the grounds of race/colour, age, sex, disability, equal pay/compensation, genetic information, national origin, pregnancy, and religion.’ Discrimination in the labour law context can therefore be defined as the less favorable treatment of a person or a group of persons because of characteristics that are not relevant to the matter at hand. Protection against discrimination in the workplace is consequently a fundamental principle of labour law.

It is prudent to note that historically, the common law principle of freedom of contract applied equally to employment contracts and, as such, at common law an employer could reasonably employ or refuse to employ anyone for whatever reason including reasons of race, age, sex, gender et cetera of that person. Such a provision offended most people’s sense of fairness and equality and as a result the law sought to intervene to restrict an employer from exercising his common law right.

                     Pursuant to Article 2 (1) of the Constitution of Kenya[2], the Constitution is enshrined as the supreme law of the land and is binding on all persons including state organs. Further, Article 27 (1) (3) (4) (5) are to the effect that every person is equal before the law and has the right to equal protection and benefit from the law, and that all persons must enjoy the right to equality and freedom from any form of discrimination.

                     The Employment Act 2007[3] makes sex discrimination unlawful in employment, training, and related matters. There are three kinds of discrimination on the ground of sex pursuant to Section 5 (3) of the Employment Act:

        i.            Direct discrimination

     ii.            Indirect discrimination

   iii.            Victimization

                     A simple example of direct discrimination would be the refusal of a female employee to go on maternity leave. In Jane Wairimu Macharia v Mugo Waweru and Associates 2012[4] the court found that the employer’s conduct was discriminatory under Section 46 of the Employment Act 2007.In addition, the court affirmed that every female employee has a right to a three-month maternity leave besides the annual leave enjoyed by all other employees. Failure of an employer to comply with this statutory period amounts to a direct discrimination against female employees. Section 29 of the Employment Act 2007 provides that a female employee is entitled to maternity leave on full pay provided she gives her employer at least seven day notice. Section 5 (3) of the Act similarly provides that no employer may discriminate either directly or indirectly against an employee or prospective employee on the grounds of pregnancy.

In Sidhu v Aero space Composite Technology Ltd 2000[5],the Court of Appeal in England stated that to find direct discrimination  the complainant must show that he has been treated less favorably  than a person who does not possess his protected characteristics[6] and that the reason for the differential treatment is the complainant’s protected characteristic. One act is sufficient and as a general rule the motive behind the action is irrelevant; there is no defence once a claim for direct discrimination has been proved unless there is an occupational requirement or exception that applies. Denning MR in the famous (or infamous) case of Peake v Automotive Products 1978[7]  held that trivial differences in treatment are not discriminatory. In this case Mr. Peake claimed direct discrimination on the basis that the women in his factory were allowed to leave five minutes earlier than the men at the close of business.[8]The Court of Appeal dismissed the claim and found no form of discrimination.

                     The second type of discrimination recognized by legislation is discrimination against a particular group which shares a protected characteristic, and which prejudices the complainant hence the title ‘indirect discrimination.’ For indirect discrimination to be actionable, the following four conditions must be satisfied:

        i.            The employer applies a provision, criterion or practice which he applies or would apply equally  to persons with whom the claimant does not share the protected characteristics;

     ii.            The act puts, or would put, persons with whom the claimant shares the characteristic at a particular disadvantage when compared to other persons who do not share it;

   iii.            Consequently results in the claimant’s detriment.

   iv.            The employer cannot show a proportionate means of achieving a legitimate aim.

                     The persuasive authority of Price v Civil Service Commission 1978[9] held that it was indirectly discriminatory to require candidates for promotion to executive officer to be age between 17 ½ and 28 years old, because many women between those ages would have been temporarily out of the labour market having children and therefore they would have been locked out due to failure to have the necessary experience. Consequently, a considerably smaller portion of women than men could meet this condition, so it was deemed correctly to amount to indirect discrimination.

                     Similarly in British Airways Plc v Starmer 2005[10], British Airways were held liable for indirect discrimination against their female pilot by denying her the right to work 50 per cent of a full-time contract after returning from maternity leave. The Employment Tribunal found for the claimant holding that British Airways has failed to provide sufficiently objective justification for its provision, criterion or practice.

                     Victimization is the act of subjecting a person to a detriment because they have done a protected act. A protected act includes;

·        Bringing proceedings under the Employment Act 2007

·        Giving evidence or information in connection with proceedings under the Act

·        Doing any other thing for the purpose of, or in connection with the Act,

·        Making an allegation (whether express or not) that the employer or another person has contravened the Act, usually to a labour officer.

                     The applicant in London Borough v Lamberth v D’Souza 1999[11] had brought several successful race discrimination claims against his employer. He alleged further discrimination and was subsequently dismissed by his employer for reason of being a trouble maker. The House of Lords upheld his claim for victimization.

                     Genuine occupational qualifications seem to provide the only defence against direct sex discrimination (but not victimization) and may apply in the following situations:

a.      Where the essential nature of the job requires it as in the case of actors and models

b.      For reasons of decency or privacy as in ladies or gents lavatories

c.      In domestic services requiring close personal contact and in single-sex prisons and hospitals

d.     If living accommodation is provided for one sex only.

               The above rules were applied successfully in Sisley v Britannia Systems 1983[12] where a man applied for a job in a security control station which employed women only. The women worked 12 hour shifts with rest periods during which they undressed to lay down on the beds provided. The Employment Appeals Tribunal held that it was reasonable in the circumstances given to refuse to employ a man for reasons of decency. A claim of indirect discrimination will be defeated if the employer can show that the provision, criterion or practice was justified irrespective of the sex of the worker.

               Where an individual presents a complaint of discrimination to a labour officer or the Industrial Court[13], a conciliator will attempt to conciliate. If this fails, the Court has three main remedies that it may award to the complainant:

                    i.            An order declaring the complainant’s rights

                 ii.            Financial compensation

               iii.            A recommendation of action to be taken by the Respondent-Employer to reduce the adverse effects of the discrimination.

            The original impetus to bring in legislation in this area of law came from international law. The Universal Declaration of Human Rights[14] states that everyone is entitled to all rights and freedoms without ‘discrimination of any kind’. Such statements are reiterated by the International Labour Organization’s Conventions.[15]Without a doubt now, the most important influence on national law has been Article 2 (5) and 2 (6) of the Constitution whose import is that international laws an treaties ratified by Kenya are a source of law in Kenya. Kenya has adopted a number of key International Labour Organization[16] Conventions governing discrimination in employment, including, the Equal Remuneration Convention, 1951 (C100) and the Discrimination (Employment and Occupation) Convention, 1958 (C111).Other legislation that curb discrimination include the Sexual Offences Act[17], African Union Treaties including; the African Charter on Human and Peoples’ Rights (ACHPR, Banjul, 1981) the Protocol on the Rights of Women in Africa (2005) others also include the Convention on the Elimination of All Forms of Discrimination Against Women 1979.

[1] Oxford English Dictionary: Oxford University Press, 8th Edition.
[2] Promulgated on August 27th 2010.
[3] Cap 226 Laws of Kenya 2007
[4] 621/2012 eKLR
[5] IRLR 602
[6] Include age, sex, disability , race, colour etc
[7] QB 233
[8] The Court of Appeal found that there was no discrimination on three grounds: firstly, the rules for safety and good administration could not be discriminatory; secondly, it would be wrong for statute to obliterate the chivalry and courtesy expected from mankind to womankind; thirdly, the de minimis principle.
[9] IRLR 3
[10] IRLR 863
[11] IRLR 240
[12] IRLR 404
[13] Pursuant to Article 162 (2) of the Constitution 2010
[14] 1948
[15] 1958 and 1980
[16] ILO
[17] Section 23 and 24 SOA 2006

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