SWM v Hardware Trading Store Limited & another [2021] KEELRC 1423 (KLR)

The claimant testified to verbal and physical harassment by her boss, witnessed on one occasion by a casual employee. The 2nd respondent, as managing director, occupied a supervisory position, and upon the claimant's claims the burden shifted to the respondents to prove no harassment occurred. The respondents failed to state how many employees they had or what measures addressed sexual harassment. The court found the claimant's case more probable, and the absence of a police report did not defeat the claim.

The burden under section 47(5) was on the employee to prove discrimination, after which the employer must justify it. The claimant informed the respondent of her pregnancy in February 2018, was advised to take annual leave in June 2018 but opted to work and be paid, and her request was accommodated. She never applied for maternity leave nor produced evidence of birth. The court found her case not established on the arbitrary-ground test requiring proof the conduct was irrational and unfair.

The claimant worked until 31st July 2018 and took maternity leave from August 2018 without applying for it or producing evidence of birth or sickness as required by sections 29, 30 and 34 of the Employment Act. The labour officer's advice that she obtain sick-off was not acted upon. Her absence without good cause amounted to gross misconduct justifying summary dismissal; she frustrated her own employment.

Maternity pay failed for want of application and evidence of delivery; notice pay failed because there was no termination by the employer; severance pay is only due in redundancy; compensation under section 49 requires a finding of unfair termination which was not made. On the evidence the court assessed sexual harassment damages at Ksh.50,000.