Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause Number 1227 of 2011· [2013] KEELRC 162 (KLR)

GMV v Bank of Africa Kenya Ltd (Cause 1227 of 2011) [2013] KEELRC 162 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
31 July 2013
JRJames Rika
12,310 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~49 min to read original · ~4 min brief

The bottom line

#

Kenya's Industrial Court ruled a bank fired an employee for being pregnant, awarding her over Kshs. 4.4 million in damages.

What this practically means

#

Executive summary

#
The Claimant, a banker with the Respondent since 1st November 2006 who rose to Manager, Agence Elite at the Ngong' Road Branch, had her employment terminated on 4th March 2011 while heavily pregnant with her second child. She claimed the termination was on account of her pregnancy, in violation of Sections 45 and 46 of the Employment Act 2007, her contract, and Articles 27 and 41 of the Constitution. The Respondent maintained the termination was for poor performance, effected under the contractual notice clause, and challenged the Industrial Court's jurisdiction to grant constitutional declarations. The Court held that under Section 5(6) of the Employment Act the employer bears the burden of proving no discrimination once a prima facie case is established, and that the employee need not prove discrimination on strict proof. It found the appraisals relied upon flawed - conducted by a peer against her reporting lines, over periods coinciding with her pregnancies, without clear targets, and without the agreed training - and therefore pretextual. The Court also found the termination procedurally unfair, with no warnings or hearing as required by the Human Resource Staff Handbook and Sections 41, 43 and 45 of the Employment Act, which are minimum standards read into every contract notwithstanding a notice clause. The Court affirmed its jurisdiction over constitutional claims in employment, and held it is not bound by the twelve months' salary cap where constitutional rights are violated, while discouraging multiplication of remedies. It granted coalesced damages of Kshs. 3,000,000 plus Kshs. 1,473,006 in contractual dues, costs, and interest at 14% per annum, but rejected claims for lost maternity leave, medical benefits, pension orders and serial declarations for lack of proof or misjoined parties.

Key legal issues

#
01

Burden of proof in pregnancy discrimination claims

Holding

The employee need only establish a prima facie case; the burden then shifts to the employer to prove a legitimate, non-discriminatory reason and that discrimination did not take place under Section 5(6) of the Employment Act

Reasoning

Section 5(6) of the Employment Act places the burden of proving absence of discrimination on the employer, supported by Section 43 which requires the employer to prove the reason for termination. The employee must show she belongs to a protected class, was qualified, suffered adverse action connected to pregnancy, and that the employer's explanation is pretextual. Falsity of the employer's explanation permits an inference of discrimination. This aligns with ILO and international human rights standards.

p. 11
02

Pretextuality of the Respondent's justification

Holding

The poor-performance appraisals were so flawed and so coincidental with the Claimant's two pregnancies that the Court inferred they were a pretext for pregnancy discrimination

Reasoning

The appraisals covered only the years of the Claimant's pregnancies; she was appraised by a peer (Alice Kaaru) contrary to her reporting lines, during that peer's own probation; targets were unclear in the forms; agreed training was never provided; and a stale 2009 customer complaint was raised after the Respondent learnt of her second pregnancy. The falsity of the explanations permitted the inference that the employer was dissembling to cover a discriminatory purpose.

p. 13
03

Procedural fairness of the termination

Holding

Termination was procedurally unfair: the Claimant received no warnings and no hearing before a Human Resources Committee as required by the Handbook and Section 41 of the Employment Act

Reasoning

The allegations of incompetence fell under Clause 10.9(26) of the Handbook, which required first and second warnings before dismissal, and Clause 10.11 required a hearing before the Human Resources Committee, adopting the statutory minimum in Section 41 of the Employment Act. None of these steps was taken. Even if performance and customer complaints were established, the Respondent was still obliged to show the Claimant was heard.

p. 15
04

Effect of a contractual notice termination clause

Holding

A clause permitting termination on notice does not displace the statutory requirements of valid reason and fair procedure; employment-at-will does not survive the Employment Act and Article 41 of the Constitution

Reasoning

The Respondent argued Clause 8.1 allowed termination by notice or notice pay as sufficient justification. The Court rejected this: if notice sufficed, the employment protections of the Employment Act would be meaningless. Sections 41, 43 and 45 are minimum standards read into every contract; a contract inconsistent with them is invalid to the extent of the inconsistency. Fair labour practices are constitutionally entrenched under Article 41.

p. 15
05

Remedies for pregnancy discrimination and the 12-month cap

Holding

The Court may exceed the twelve months' salary cap where constitutional rights are infringed, but should grant coalesced rather than serial remedies for the same wrong

Reasoning

While the Court discourages multiplication of remedies arising from one wrong, a pregnancy discrimination claim implicates multiple basic rights and cannot be adequately redressed by the statutory ceiling. The Industrial Court Act 2011 and the Constitution free the Court from the old Trade Disputes Act caps. The Court awarded coalesced damages of Kshs. 3 million plus the contractual sums offered at termination.

p. 17

Legal principles established

#
  • In pregnancy discrimination claims under Section 5(3) of the Employment Act, the employer bears the burden of proving that discrimination did not take place once the employee establishes a prima facie case
  • Employment is no longer at the will of the employer; a contractual notice clause does not excuse the employer from giving valid reasons and observing fair procedure, since Sections 41, 43 and 45 of the Employment Act are minimum standards read into all contracts
  • The Industrial Court has jurisdiction to interpret, enforce and promote constitutional rights within the labour and employment regime and to grant remedies for pregnancy discrimination
  • The Industrial Court is not limited by the twelve months' gross salary cap in the Employment Act in assessing compensatory damages where constitutional rights are infringed, though it must not encourage multiplication of remedies

Court orders

#
  1. 1.Declaration that the Claimant's termination of service was based on her pregnancy and was therefore discriminatory, unfair, unlawful, and in violation of the Employment Act 2007, the Contract of Employment and the Constitution of Kenya
  2. 2.Respondent to pay the Claimant coalesced damages of Kshs. 3,000,000
  3. 3.Respondent to pay salary in lieu of notice; service/gratuity pay; outstanding leave; and 3 days worked in March 2011 at Kshs. 1,473,006
  4. 4.Respondent to pay a total of Kshs. 4,473,006
  5. 5.Costs to the Claimant
  6. 6.Interest on the principal sum and costs at 14% per annum from the date of delivery of the Award to the date of payment in full

Authorities

#

Legislation

  • Employment ActSections 5(3), 5(6), 35, 36, 41, 43, 45, 46, 49
  • Labour Institutions Act No. 12 of 2007Sections 12, 15 and Part 3 (repealed)
  • Industrial Court Act 2011general
  • Constitution of Kenya, 2010Articles 23(3), 27(5), 41(1), 45, 165(2), 165(6)
  • Trade Disputes Act Cap 234general (repealed)
  • ILO Maternity Protection Convention Number 183general
  • Universal Declaration of Human Rightsgeneral
  • UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)general

Cases cited (7)

  • Joseph Ndambuki & 4 others v. Delmonte limited
    [2012] e-KLR
  • United States International University [USIU] v. the Attorney General of Kenya & 2 Others
    [2012] e-KLR; High Court Petition Number 170 of 2012
  • Fredrick Kimani v. the Attorney General
    (2012) e-KLR
  • D.K.Njagi Marete v. Teachers Service Commission
    (2013) e-KLR; Industrial Court Cause Number 379 [N] of 2009
  • SA Naptosa & Others v. Minister of Education Western Cape & Others
    [2001] BCLR 338
  • Eastwood & Another v. Magnox Electric PLC; McCabe v. Cornwall County Council & Others
    [2004] UKHL 35
  • Reeves v. Sanderson Plumbing Products Inc.
    530 US. 138, 141 (June 12th 2000)
Jurisdiction invoked
Sections 12 and 15 of the Labour Institutions Act 2007, the Industrial Court Act 2011, the Employment Act 2007 and Articles 41 and 165(2) of the Constitution of Kenya, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (25)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "GMV v Bank of Africa Kenya Ltd (Cause 1227 of 2011) [2013] KEELRC 162 (KLR)", Case Analysis (2013). Cause Number 1227 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/162/eng@2013-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.