Miriti v Co-operative Bank Kenya Limited (Cause 1215 of 2018) [2023] KEELRC 2452 (KLR)
The bottom line
#A Kenyan court ruled that penalising an employee's performance during maternity leave was pregnancy discrimination, awarding her compensation despite also upholding the bank's loan counterclaim.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a valid reason to terminate the Claimant's employment
There was no valid reason; the Respondent disregarded the pregnancy and related illness underlying the unsatisfactory performance.
The Respondent had a Performance Management Policy and applied it per the principles in Jane Samba Mukala. However, the Claimant's poor performance in quarters 1 and 2 of 2016 coincided with pregnancy complications, hospitalisation, and maternity and annual leave, all known to the Respondent. A reasonable employer would have approached her evaluation with caution and reasonably accommodated her. Only quarter 1 of 2017 could fairly be held against her, as the second pregnancy was undisclosed.
Whether the Claimant was discriminated against on account of pregnancy
Yes; the evaluation and PIP during maternity leave and pregnancy-related illness constituted pregnancy discrimination, which is sex discrimination.
The Respondent imposed additional burdens on a pregnant employee without reasonable accommodation, placing her at a disadvantage. The Court, citing Jurcic v. Croatia, held pregnancy discrimination to be sex discrimination under the Constitution and Employment Act. The Claimant suffered a double-headed discrimination based on pregnancy and gender.
Whether the termination procedure was fair
The procedure met the minimum statutory standards under Sections 41 and 45 of the Employment Act.
The Claimant was invited to all review meetings with clear subject matter, accompanied by her trade union representative, allowed to make representations, and minutes were signed. Her appeal was considered and declined in writing dated 18th September 2017. No procedural flaw was shown.
Whether the Counterclaim is merited
Yes; judgment entered for the Respondent on the Counterclaim for Kshs. 1,920,190 but interest at commercial rates declined.
There was no response to the Counterclaim. The Claimant conceded in evidence the outstanding personal, residential property and laptop loans and did not dispute the pleaded figure. However, the Respondent did not establish that the loans were commercial; they arose from the employer-employee relationship, so commercial rates of interest were refused.
Legal principles established
#- Evaluating an employee's performance over a period she is on maternity leave and experiencing pregnancy-related illness amounts to pregnancy discrimination, forbidden under the Constitution and the Employment Act.
- Pregnancy discrimination may take the form of denying reasonable accommodation to employees based on pregnancy, childbirth and related medical conditions.
- Pregnancy discrimination is a form of sex discrimination prohibited under the Constitution and the Employment Act.
- Reinstatement under the Employment and Labour Relations Court Act is limited to within 3 years of termination.
- Employer-employee loan relationships should be protected from commercial vagaries; commercial interest rates cannot be imposed absent loan contracts establishing commercial terms.
Court orders
#- 1.The Counterclaim is allowed at Kshs. 1,920,190, with no order on the costs and interest.
- 2.It is declared that the Claimant's contract was terminated unfairly, and was based on pregnancy discrimination.
- 3.The Respondent shall pay to the Claimant notice at Kshs. 113,401, equivalent of 8 months' gross salary in compensation for unfair termination at Kshs. 907,208, and damages for pregnancy discrimination at Kshs. 899,581 – total Kshs. 1,920,190, with no order on the costs and interest.
- 4.The amount due to the Claimant, shall be set off, against the amount due to the Respondent.
- Jurisdiction invoked
- Article 162(2) of the Constitution; Employment and Labour Relations Court Act, Section 12
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Miriti v Co-operative Bank Kenya Limited (Cause 1215 of 2018) [2023] KEELRC 2452 (KLR)", Case Analysis (2023). ELRC Cause Number 275 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2452/eng@2023-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.