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ELRCPartially AllowedELRC Cause No. (not stated on the face of the extract)· [2022] KEELRC 82 (KLR)

CNR; FITM & another (Respondent) (Cause E204 of 2021) [2022] KEELRC 82 (KLR)

Employment and Labour Relations Court
26 April 2022
NMNzioki wa Makau
1,914 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a woman over Kshs. 2.1 million after her boss's sexual text messages forced her to resign and her employer did nothing.

What this practically means

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Executive summary

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The Claimant, employed by the 1st Respondent as Customer Service Officer in January 2016 and rising to Customer Service Manager earning Kshs. 95,400/- gross, sued the 1st Respondent (her employer) and the 2nd Respondent (the Country Manager, Jesse Thuo) alleging sexual harassment between 20th December 2020 and 1st January 2021 through offensive text messages of a sexual nature. She reported the conduct to a Director but no action was taken, and she was eventually forced to resign. She sought declarations of constructive termination and sexual harassment, 22 months' salary to retirement, notice pay, leave days, 12 months' compensation, aggravated damages, costs and interest. The Respondents denied the allegations, asserting the messages were not offensive and that the Claimant simply failed to return to work after a meeting proposed moving her to a different department. The Respondents filed no submissions. The court found the text messages evidenced a pattern of inappropriate, non-work-related conduct amounting to sexual harassment under Section 6 of the Employment Act. It held the 1st Respondent breached its duty to have a sexual harassment policy and take disciplinary action, an unfair labour practice contrary to Article 41(1) of the Constitution, and that the Claimant was constructively dismissed. Judgment was entered jointly and severally: Kshs. 1,000,000/- damages for contravention of rights, Kshs. 1,144,800/- being 12 months' salary compensation, costs, and interest at court rates from judgment until payment in full.

Key legal issues

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01

Sexual harassment by the 2nd Respondent

Holding

The text messages and conduct of the 2nd Respondent amounted to sexual harassment under Section 6 of the Employment Act

Reasoning

The court examined the screenshots of text messages sent between 20th December 2020 and 1st January 2021 and found a pattern of inappropriate, non-work-related conduct of a sexual nature, including invitations to meet for wine. The Claimant expressed displeasure to a Director, showing the conduct was unwelcome and offensive and affected her employment, satisfying Section 6(1)(b) of the Employment Act.

p. 3
02

Employer's liability for absence of sexual harassment policy

Holding

The 1st Respondent failed the Claimant by not having a sexual harassment policy and not taking disciplinary action against the 2nd Respondent

Reasoning

Section 6 of the Employment Act obliges an employer to have measures to prevent workplace sexual harassment and to take disciplinary action against the harasser. Despite the Claimant reporting the harassment to the Managing Director/Director, no investigation or action was taken. This failure constituted an unfair labour practice contrary to Article 41(1) of the Constitution and violated her dignity.

p. 4
03

Constructive dismissal

Holding

The Claimant was constructively dismissed and entitled to 12 months' salary compensation

Reasoning

The court held that an employee forced to resign by harassment is deemed constructively dismissed. The Claimant ought not have had to choose to resign due to the harassment. She was therefore awarded 12 months' salary as compensation for constructive dismissal, computed at Kshs. 1,144,800/-, in addition to damages for the contravention of her rights.

p. 4

Legal principles established

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  • Written or spoken language of a sexual nature that is unwelcome or offensive, with a detrimental effect on employment, job performance or job satisfaction, amounts to sexual harassment under Section 6 of the Employment Act
  • An employer must have measures and a policy to prevent sexual harassment at the workplace and take disciplinary action against a harasser; failure amounts to unfair labour practice under Article 41(1) of the Constitution
  • An employee forced to resign is deemed to have been constructively dismissed

Court orders

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  1. 1.Judgment entered for the Claimant against the 1st and 2nd Respondents jointly and severally
  2. 2.Kshs. 1,000,000/- as damages for contravention of her rights
  3. 3.12 months' salary as compensation for constructive dismissal - Kshs. 1,144,800/-
  4. 4.Costs of the suit
  5. 5.Interest on the sums in (i) and (ii) at Court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSection 6(1)(b) and (d)
  • Constitution of Kenya, 2010Article 41(1)

Cases cited (3)

  • Maureen Wanjiru Mwangi v Blue Sea Energy Limited
    [2020] eKLR
  • SWM v Hardware Trading Store Ltd & Anor
    [2021] eKLR, ELRC Cause No. 26 of 2019
  • Kenya Union of Commercial Food & Allied Workers v Meru Central Dairy Cooperative Union Limited
    [2015] eKLR, ELRC Cause No 147 of 2014
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Article 41(1) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "CNR; FITM & another (Respondent) (Cause E204 of 2021) [2022] KEELRC 82 (KLR)", Case Analysis (2022). ELRC Cause No. (not stated on the face of the extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/82/eng@2022-04-26

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