Millicent Nyambura Njoroge v Flamingo Horticulture (K) Limited [2021] KEELRC 1948 (KLR)
The bottom line
#Kenya's Employment Court confirmed that retrenching an employee on maternity leave without proper notice and clear selection criteria is unfair and discriminatory.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the redundancy under section 40(1) of the Employment Act
The redundancy was unfair because no notice was given to the petitioner and the selection criteria were not explained
The termination letter of 27th July 2016 took effect immediately, showing no notice was issued. Payment of one month's salary in lieu of notice does not substitute for the notice required under section 40(1)(b), which elicits consultation on justifiability. The employer also bears the burden of proving compliance and did not demonstrate the criteria used to select the petitioner.
Discrimination on account of pregnancy/maternity leave
Declaring the petitioner redundant during maternity leave without following procedure amounted to discrimination
Relying on ILO Maternity Protection Convention No. 183, the court held that maternity leave is a protected period and termination during it is prohibited unless the employer proves grounds unrelated to pregnancy. Since the respondent gave no notice, did not consult, and failed to establish selection criteria, it could not prove the redundancy was genuine and unrelated to the maternity, so discrimination was established.
Remedies for unfair and discriminatory redundancy
Petitioner awarded unpaid maternity leave pay, 10 months' salary compensation and general damages of Kshs. 1,000,000
Having found the termination unfair and discriminatory, the court exercised discretion to compensate the petitioner, granting one month unpaid maternity leave, ten months' salary as compensation for the unfair redundancy, and general damages for discrimination on account of maternity leave, with costs and interest.
Legal principles established
#- An employer who fails to give the notice required under section 40(1) of the Employment Act and fails to demonstrate the selection criteria used carries out an unfair and unjustifiable redundancy.
- Termination of a woman during maternity leave is prohibited and the burden rests on the employer to show the termination is unrelated to the maternity.
- A redundancy effected without procedure during maternity leave is discriminatory.
Court orders
#- 1.Award of one month unpaid maternity leave at Kshs. 12,000
- 2.Award of 10 months' salary as compensation for the unfair redundancy, being Kshs. 120,000
- 3.Award of general damages for discrimination on account of maternity leave of Kshs. 1,000,000
- 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Constitution and the Employment Act (petition for violation of Articles 27(5) and 41(1))
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.
- Koech v Bundotich & another (T/A M/S Kale Maina & Bundotich Advocates) (Cause 640 of 2017) [2022] KEELRC 1621 (KLR)[2022] KEELRC 1621 (KLR)27 Jul 2022
Cite this brief
#Cite this brief
Caselaw, "Millicent Nyambura Njoroge v Flamingo Horticulture (K) Limited [2021] KEELRC 1948 (KLR)", Case Analysis (2021). Petition dated 24th April, 2019 (ELRC, Naivasha). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1948/eng@2021-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.