Esther Wanjiru Magu v Steelplus Limited [2015] KEELRC 872 (KLR)
The bottom line
#A Kenyan court ruled that firing or locking out a pregnant employee during maternity leave is automatically unfair discrimination, awarding her 24 months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was a casual employee
The Claimant was a regular employee who converted under Section 37 of the Employment Act; her daily rate did not make her a casual employee
The Claimant performed day-to-day administrative duties including attending Directors' meetings, handling mail and processing wages. Her role was not temporary or peripheral; she served continuously from October 2009 to August 2011 with probation and training periods. The daily rate of Kshs. 350 was converted to a monthly salary under Section 37 of the Employment Act.
Whether the Respondent terminated the Claimant's employment
Termination was instigated by the Respondent; the Claimant did not abandon her position but was barred from returning after maternity leave
The Respondent gave no evidence to support its assertion that the Claimant failed to return. The Claimant testified she phoned and wrote asking when to resume duty, and received no invitation to return. Her advocates' demand letter two months after leave expired drew no reply and no invitation to resume work.
Whether termination was procedurally fair and for a valid reason
Termination was procedurally unfair under Section 41 and without valid reason under Sections 43 and 45; the reason was the Claimant's pregnancy
The Respondent did not accord the Claimant a hearing before terminating and did not even accept responsibility for the termination. It also failed to demonstrate any reason for termination. In the absence of any evidence from the Respondent, the Court inferred the termination was based on her pregnancy, which is automatically unfair under Section 46 of the Employment Act.
What remedies the Claimant is entitled to
The Claimant merits damages for pregnancy discrimination as well as compensation for unfair termination, and her withheld maternity leave salary
Following the approach in Ruth Wanjiru Gichuhi v Mondeas Limited and G.M.V. v Bank of Africa Limited, the Claimant lost her job because she was an economic burden to the Employer during pregnancy. She was granted 12 months' salary for pregnancy discrimination, another 12 months' compensation for unfair termination, and her withheld salary of Kshs. 31,500.
Legal principles established
#- Termination of employment on the basis of pregnancy is automatically unfair and constitutes discrimination at the workplace
- An employee on maternity leave is entitled to full pay and to return to the same or comparable job on terms not less favourable
- An employer who fails to give evidence cannot discharge the statutory burden of proving the reason for termination and its validity and fairness
Court orders
#- 1.It is declared termination was unfair and wrongful
- 2.The Respondent shall pay to the Claimant 12 months' salary in damages for pregnancy discrimination at Kshs. 126,000
- 3.The Respondent shall pay to the Claimant another 12 months' salary in compensation for unfair termination at Kshs. 126,000
- 4.The Claimant shall be paid her withheld salary of Kshs. 31,500
- 5.The full amount of Kshs. 283,500 shall be paid to the Claimant by the Respondent within 30 days of the delivery of this Award
- 6.Costs to the Claimant
- 7.The Award to attract interest at Court rate, upon expiry of the given 30 days from the date of delivery
- Jurisdiction invoked
- Industrial Court [Procedure] Rules 2010, Rule 27 [1] [a]; dispute over unfair and unlawful termination under the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Elizabeth Mwende Timothy v Brinks Security Services Limited [2018] KEELRC 503 (KLR)[2018] KEELRC 503 (KLR)23 Nov 2018
Cite this brief
#Cite this brief
Caselaw, "Esther Wanjiru Magu v Steelplus Limited [2015] KEELRC 872 (KLR)", Case Analysis (2015). Cause Number 253 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/872/eng@2015-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.