Geeta Joshi v Pandya Memorial Hospital [2019] KEELRC 2432 (KLR)
The bottom line
#A Kenyan court ruled that retiring a female employee at 55 was gender discrimination, awarding her over Kshs 5.9 million in damages and compensation.
What this practically means
#Executive summary
#Key legal issues
#Unlawful termination of employment
The retirement of the Claimant at 55 years as a female employee was without legal justification and was unlawful and unfair, entitling her to compensation.
The retirement notice expressly tied the retirement age of 55 to female staff, implying a different age for males. The Respondent did not avail its retirement policy or call evidence to rebut the inference of discriminatory treatment. The retirement was also preceded by conflict between the parties. Retirement being a valid ground of termination must nonetheless be undertaken within the law, which was not done.
Discrimination on ground of gender
Retiring the Claimant at 55 years because she was female constituted discrimination on the ground of gender, contrary to Article 27 of the Constitution and Section 5(3) of the Employment Act.
The retirement notice stated the retirement age of 55 applied specifically to female staff, which contravenes the constitutional guarantee of equality and the Employment Act prohibition of discrimination on grounds of sex. Under Section 5(6), the burden lay on the employer to disprove discrimination; the Respondent produced no policy document and called no witness, so the court held discrimination established and awarded damages.
Remedies
Claimant awarded 12 months' salary compensation, Kshs. 5,000,000 damages for discrimination, Kshs. 40,000 superintendence allowance and final dues; claims for lost earnings and royalties dismissed.
Twelve months' compensation reflected long service and the employer's conduct. Discrimination damages accounted for the claimant's cut-short career in a high-skill technical area, three years of joblessness and unpaid terminal dues. The superintendence allowance was due per the Respondent's own undertaking, and final dues per its tabulation. No basis was laid for lost earnings and royalties.
Legal principles established
#- Retirement as a mode of terminating employment must be undertaken within the law and a retirement age differentiated by gender is discriminatory.
- In the absence of a general constitutional or statutory mandatory retirement age, the retirement age is a contractual term to be agreed or varied in consultation with the employee.
- Under Section 5(6) of the Employment Act, the burden of disproving an allegation of discrimination lies with the employer.
Court orders
#- 1.12 months' salary in compensation of Kshs. 521,400
- 2.Damages for discrimination of Kshs. 5,000,000
- 3.Allowance for lab superintendence duties in 2014 of Kshs. 40,000
- 4.Final dues as tabulated by the Respondent of Kshs. 354,037
- 5.Total judgment of Kshs. 5,915,437 with interest at court rates from the date of judgment until payment in full
- 6.Claimant entitled to a certificate of service
- 7.Costs of the case to the Claimant
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act, 2007; Article 27 of the Constitution of Kenya, 2010)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Geeta Joshi v Pandya Memorial Hospital [2019] KEELRC 2432 (KLR)", Case Analysis (2019). Memorandum of Claim dated 14th March 2016, amended 27th June 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2432/eng@2019-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.