Kenya Union of Domestic Hotels, Educational Institutions and Allied Workers v M P Shah Hospital [2018] KEELRC 1839 (KLR)
The bottom line
#Kenya's Employment Court ruled that retiring union members at 57 while managers retire at 60 was unjustified discrimination, so union members now retire at 60.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the retirement age for the claimant's members is 57 or 60 years (as consented by the parties)
- 2.Whether the provision that unionisable employees retire at 57 years, while management employees retire at 60 years, is discriminatory
- 3.Whether the respondent established an inherent requirement of the job justifying the variance in retirement age
- 4.Whether parties can be allowed to escape their own agreement on retirement age
Key legal issues
#Whether age discrimination is proscribed under section 5(3)(a) of the Employment Act and Article 27(4) of the Constitution
Section 5(3)(a) does not proscribe age as a ground of discrimination, and Article 27(4) is directed at the state rather than private employers.
The Court read section 5(3)(a) of the Employment Act and found the enumerated grounds do not include age. Article 27(4), which lists age, is textually addressed to the state, so as a general rule it cannot be invoked against a private sector employer. The Court noted age has been applied as a positive discrimination ground, e.g. Part VII of the Employment Act protecting children.
Whether the respondent justified the differing retirement ages as an inherent requirement of the job under section 5(3)(b)
The respondent failed to adduce evidence establishing the inherent job requirements or productivity/succession justifications for the variance.
The respondent relied on claims that unionisable staff perform manual work whose productivity diminishes with age, and that management requires longer service for succession management. The Court found no evidence was led to establish these factors, so the justification under section 5(3)(b) failed.
Whether the 57-year retirement clause contravenes section 5(2) of the Employment Act
The clause amounts to unequal treatment of union members without reasonable justification, contravening section 5(2) and Articles 41(1) and 27(1) of the Constitution.
The clause treats differently union members, employees eligible to join the union who have not joined, and management staff. Agreement between parties does not of itself justify the variance. The clause could discourage union membership and cannot be objectively justified under the Belgain Linguistics test.
Whether parties can escape their own agreement on retirement age
The Court cannot rewrite the agreement but may stay the impugned clause pending renegotiation or policy change to comply with section 5(2).
Citing National Bank of Kenya v Pipeplastick Samkolit, the Court held parties are bound by their contract unless coercion, fraud or undue influence are proved. Since the clause is capable of being implemented in compliance with section 5(2) through renegotiation or policy change, the Court granted a stay rather than reviewing the agreed retirement age.
Legal principles established
#- A retirement-age clause in a collective agreement that treats union members differently from management cadre without objective justification contravenes the employer's obligation to promote equal opportunity in employment under section 5(2) of the Employment Act, 2007.
- A court cannot re-write a contract between parties; parties are bound by their contract unless coercion, fraud or undue influence are pleaded and proved.
- Collective agreements bind the employer and its unionisable employees under section 59 of the Labour Relations Act, 2007.
Court orders
#- 1.An order of stay, staying the decision and parties' agreement in the collective agreement that the respondent retire the claimant's members upon attaining the age of 57 years, until the respondent institutes change in policy or renegotiates normal retirement age in line with section 5(2) of the Employment Act, 2007
- 2.Until order (a) is satisfied, the provision in the collective agreement requiring retirement at 57 years is stayed and the members will retire at the age of 60 years
- 3.Each party to bear own costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Jurisdiction under the Employment and Labour Relations Court over employment and labour relations disputes; section 59 of the Labour Relations Act, 2007 and section 5 of the Employment Act, 2007 relied upon
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
a) An order of stay, staying the decision and parties' agreement in the collective agreement that the respondent to retire the claimant's members upon attaining the age of 57 years and until the respondent institutes change in policy or renegotiates normal retirement age for its employees that is in line with provisions and respondent's obligations as provided for in section 5 (2) of the Employment Act, 2007.
b) Until order (a) above is satisfied, the provision in the collective agreement that the respondent retires the claimant's members upon attaining 57 years of age is hereby stayed and the members will retire at the age of 60 years.
The Court returns that the provision that the claimant's members retire at 57 years of age amounts to a discrimination that cannot be objectively justified.
Thus simply to say the parties to the collective agreement had agreed does not in the opinion of the Court, amount to a reasonable justification for a varying retirement age between the unionisable and the management cadres.
It is not for the Court to rewrite the agreement between the parties, but the Court may stay the operation of the impugned provision of the collective agreement pending the respondent's compliance with the statutory provision in issue.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic Hotels, Educational Institutions and Allied Workers v M P Shah Hospital [2018] KEELRC 1839 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1839/eng@2018-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.