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
