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ELRCPartially AllowedMilimani ELRC Appeal (from Milimani CMELRC No. E253 of 2020)

Nyabuto v Goodman Agencies Limited (Employment and Labour Relations Appeal E127 of 2022) [2023] KEELRC 2464 (KLR)

Employment and Labour Relations Court
11 October 2023
3,675 words in judgment
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The bottom line

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A Kenyan court ruled that firing a woman because she was pregnant, not poor performance, entitled her to twelve months' salary in compensation.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi, per Abuodha Jorum Nelson J, disposed of the Appellant's appeal by written submissions against the judgment of A.N. Makau (PM) in Milimani CMELRC No. E253 of 2020, which had awarded the Appellant one month's pay in lieu of notice, February salary arrears, untaken leave and two months' compensation, while denying discrimination damages, car and airtime allowances, and gratuity. The court framed three issues: the fairness of the reasons for termination, whether the termination was on account of pregnancy, and whether the damages were inordinately low. On the first issue, the court held the Respondent failed to prove poor performance: the caution letters largely predated confirmation, a caution issued three days after a favourable appraisal, and no performance review occurred between July 2019 and the February 2020 termination. On the second issue, applying G M V Africa Kenya Limited, the court held the Appellant established a prima facie case of pregnancy discrimination, shifting the burden to the Respondent under section 5(6) of the Employment Act; the Respondent's failure to call witnesses or prove poor performance meant the most probable reason for termination was the pregnancy. However, no overt and egregious conduct was demonstrated, so general damages for discrimination were refused, upholding the trial court. The court enhanced compensation for unfair termination from two to twelve months' salary (Kshs 960,000/=), allowed the unpaid salary items, but upheld denial of allowances and gratuity and refused loss of maternity leave and medical benefits. Costs and interests of the suit and appeal were awarded to the Appellant, subject to taxes and statutory deductions. The appeal was allowed in part.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the reasons given by the Respondent for the Appellant's termination is fair and justified.
  2. 2.Whether the Claimant was terminated on accounts of pregnancy and discriminated on the same ground.
  3. 3.Whether the damages awarded to the Appellant were inordinately low.

Key legal issues

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01

Validity of termination for poor performance

Holding

Termination on account of poor performance was invalid; the employer failed to prove the reason or place the employee on a performance improvement plan.

Reasoning

The Respondent relied on caution letters mostly issued during probation, and issued a caution just three days after a favourable appraisal. No performance review was done between July 2019 and February 2020. Under sections 43 and 47(5) of the Employment Act the employer bears the duty to prove valid and fair grounds, which it failed to discharge.

p. 5
02

Discrimination on account of pregnancy

Holding

The Appellant was terminated on account of her pregnancy, amounting to discrimination contrary to Article 27 of the Constitution and section 5(3) of the Employment Act.

Reasoning

Once the Appellant established a prima facie case - belonging to a protected class, qualification for the job, adverse action - the burden shifted to the Respondent under section 5(6) to prove discrimination did not occur. The Respondent's failure to call witnesses who heard of the pregnancy and its inability to prove poor performance left pregnancy as the most probable reason.

p. 7
03

Adequacy of compensation for unfair termination

Holding

The trial court's award of two months' compensation was enhanced to the maximum of twelve months' salary (Kshs 960,000/=) given the termination was on account of pregnancy.

Reasoning

Having found the termination unfair and the reason being pregnancy, which section 46(a) of the Employment Act deems unfair termination, the court exercised its discretion under section 49 to award the maximum twelve months' compensation, overturning the trial court's two-month award.

p. 7
04

Admissibility of sonographer report and notice of pregnancy

Holding

The sonographer report did not require the maker to be called, and a seven-month pregnancy is physically recognisable; the employee was under no duty to formally notify the employer.

Reasoning

The court held the trial court erred in rejecting the sonographer report, that oral evidence of the pregnancy was credible given the Respondent failed to call the named witnesses, and that a seven-month pregnancy is apparent to any reasonable person, negating any need for formal notice.

p. 6

Legal principles established

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  • An employer bears the statutory burden under section 5(6) of the Employment Act to prove that discrimination on account of pregnancy did not take place once a prima facie case is established; failure to do so leads to a conclusion of discrimination.
  • An employee has no duty to notify the employer of pregnancy before termination; the only notice requirement arises under section 29(4) of the Employment Act when proceeding on maternity leave.
  • Poor performance as a reason for termination places the employer at a high level of proof, including evidence of a performance measurement policy and performance improvement process.

Court orders

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  1. 1.One month's salary in lieu of notice - Kshs 80,000/=
  2. 2.Unpaid salary arrears for February 2020 - Kshs 32,000/=
  3. 3.Untaken leave - Kshs 24,000/=
  4. 4.12 months compensation for unfair termination - Kshs 960,000/=
  5. 5.Costs and interests of the suit and this appeal
  6. 6.Items (a), (b), (c) and (d) subject to taxes and statutory deductions where applicable

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Milimani Chief Magistrate's Court (CMELRC)
Milimani CMELRC No. E253 of 2020
Jurisdiction invoked
First appellate jurisdiction over the subordinate court under the Employment and Labour Relations Court Act (appeal from Milimani CMELRC No. E253 of 2020)

Relief refused

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General damages for discrimination on account of pregnancy (Kshs 3,500,000/= sought)

No overt and egregious actions demonstrated beyond the failure to prove the reason for termination; trial court's refusal upheld

p. 7

Unpaid car allowance and airtime allowance

Contract provided allowances would apply per Respondent's policies; Appellant produced no evidence of having applied for them

p. 7

Gratuity for two years

Not provided for in the employment contract

p. 7

Loss of three months' maternity leave and lost medical benefits

Employment contract is not a lifetime engagement

p. 7

Unremitted pension contributions claim as pleaded (awarded, per paragraph 47)

Costs

Costs and interests of the suit and this appeal to the Appellant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion the Court hereby allows the Appeal in part as follows:
p. 7Disposition
d. 12 months compensation for unfair termination-960,000/=
p. 8Enhanced compensation award
Items (a), (b), (c) and (d) shall be subject to taxes and statutory deductions where applicable
p. 8Taxation of awards
Once the Appellant proved her prima facie case the burden shifted to the Respondent to show a legitimate explanation for the termination.
p. 7Burden of proof in pregnancy discrimination
All the ladies are required to do, is establish a prima facie case, through direct evidence or statistical proof, that they have been discriminated against at employment, on account of their pregnancies.
p. 6Standard of proof for pregnancy discrimination claims
Having found that the Appellant was terminated unfairly and the reason for her termination being her pregnancy, the Court will enhance the award to 12 months salary as compensation for unfair termination.
p. 7Enhancement of compensation

Issues in the judgment

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minor

Internal inconsistency: paragraph 10 asserts the Appellant 'always met her targets' while paragraph 30 records that the favourable appraisal noted she 'promised to work harder to meet her targets', suggesting performance gaps.

minor

Paragraph 47 awards unremitted pension contributions to the Appellant, but the final orders in paragraph 51 do not include an item for pension contributions.

minor

Judgment characterises poor performance as falling under gross misconduct, which is not how section 44(4) of the Employment Act ordinarily categorises it.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nyabuto v Goodman Agencies Limited (Employment and Labour Relations Appeal E127 of 2022) [2023] KEELRC 2464 (KLR)", Case Analysis (2023). Milimani ELRC Appeal (from Milimani CMELRC No. E253 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2464/eng@2023-10-11

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