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ELRCPartially AllowedCause No 350 of 2018· [2019] KEELRC 1323 (KLR)

Margaret Injete Shadrack v Radar Security Limited [2019] KEELRC 1323 (KLR)

Employment and Labour Relations Court
21 June 2019
958 words in judgment
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The bottom line

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A Kenyan court ruled that firing a woman for getting pregnant is unconstitutional discrimination and awarded her Kshs. 827,184 plus costs and interest.

What this practically means

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Executive summary

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The Claimant, employed as a Guard by the Respondent Company on 30th March 2012 at a monthly salary of Kshs. 7,800, applied for maternity leave on 30th April 2015 and was instead told to proceed on leave and surrender all uniforms and items in her possession before receiving her final dues, effectively terminating her employment. She sued for declarations of gender/pregnancy discrimination and unfair termination, and for various monetary heads totaling Kshs. 827,184, including undercut salary, overtime, accrued leave, maternity pay, public holiday pay, notice pay, severance pay and 12 months' salary compensation for discrimination and unfair termination. The Respondent did not enter appearance or file a response despite proper service, and the matter proceeded by formal proof. The Court found the claim uncontested and proved, holding that the Respondent was extremely callous and discriminated against the Claimant on account of her gender and pregnancy, infringing Article 27(5) of the Constitution and Sections 5(3) and 29 of the Employment Act 2007, and that termination offended Sections 41, 43 and 45 for want of reason and hearing. The Court noted that damages for pregnancy discrimination are not capped at 12 months' salary but declined to amend the unamended prayer, awarding the pleaded Kshs. 827,184. Severance pay was granted as service pay, there being no evidence of redundancy. Judgment was entered with costs to the Claimant and interest at 14% per annum from the date of judgment until payment in full.

Key legal issues

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01

Pregnancy/gender discrimination

Holding

The Respondent discriminated against the Claimant on account of her gender and pregnancy, violating Article 27(5) of the Constitution and Sections 5(3) and 29 of the Employment Act 2007

Reasoning

The Claimant was dismissed immediately upon applying for maternity leave, required to surrender uniforms and tools of trade, denied maternity leave pay and the right to return to work, and insulted with a sarcastic note. The Respondent filed no response, leaving the conduct unexplained and indefensible. The Court found the dismissal was solely on account of pregnancy.

p. 2
02

Fairness of termination

Holding

Termination offended both procedural and substantive fairness under Sections 41, 43 and 45 of the Employment Act 2007; no reason was given and no hearing took place

Reasoning

There was no reason at all given to justify termination and no hearing of any shade took place. The Court noted the Claimant understated the wrong by seeking only a declaration of procedural unfairness when both procedural and substantive fairness were breached.

p. 2
03

Quantum of damages for pregnancy discrimination

Holding

Pregnancy discrimination damages are not capped at 12 months' salary, but the Court would not amend an unamended prayer; the pleaded total of Kshs. 827,184 was awarded

Reasoning

The Court restated its previous position that pregnancy discrimination involves constitutional and statutory violations attracting general damages, not capped statutory compensation. However, bound by the pleading, it awarded the pleaded amount since the heads were uncontested and within the law.

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04

Severance pay versus service pay

Holding

The prayer for severance pay was granted as service pay because no redundancy was shown

Reasoning

Severance pay under Section 40 requires redundancy, which was not established on the evidence. The Court instead granted service pay, ensuring the Claimant was compensated under the appropriate statutory head.

p. 2

Legal principles established

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  • Damages for pregnancy discrimination are not limited to 12 months' salary; a victim may plead general damages for the constitutional and statutory violation
  • Terminating a female employee on account of pregnancy infringes Article 27(5) of the Constitution and Sections 5(3) and 29 of the Employment Act 2007

Court orders

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  1. 1.It is declared that the Claimant was discriminated against on account of her pregnancy
  2. 2.It is declared that termination was unfair
  3. 3.The Respondent shall pay to the Claimant compensation, damages and terminal dues at Kshs. 827,184 as pleaded
  4. 4.Costs to the Claimant
  5. 5.Interest allowed at 14% per annum from the date of Judgment, till payment is made in full

Authorities

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Legislation

  • Constitution of KenyaArticle 27(5)
  • Employment ActSections 5(3), 29, 40, 41, 43, 45
Jurisdiction invoked
Employment and labour relations jurisdiction under the Employment Act 2007 and Article 27(5) of the Constitution (as invoked in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Margaret Injete Shadrack v Radar Security Limited [2019] KEELRC 1323 (KLR)", Case Analysis (2019). Cause No 350 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1323/eng@2019-06-21

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