Bajaber v Planning Systems Services Limited (Cause E871 of 2021) [2024] KEELRC 1462 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Admissibility of data subjects' annual leave records as comparators' evidence in a discrimination claim
The objection was not well-founded; the annual leave records are admissible and integral to establishing workplace discrimination.
Discrimination claims require comparators' evidence. The annual leave records are not biometric, health or sensitive personal data incapable of harming the data subjects. The Data Protection Act permits processing without consent where necessary to establish, exercise or defend a legal claim, or where required by law or court order. The data subjects are the Respondent's own witnesses and principal officers, aware of and able to dispute the data in oral evidence. No breach was reported to the Data Commissioner, indicating no real risk of harm.
Whether use of the data subjects' data required their consent under the Data Protection Act 2019
Consent was not necessary under Sections 30(1)(b)(ii) and 30(1)(b)(vii), and use is permitted under Sections 45(c)(i) and 51(2).
Section 30(1)(b)(ii) exempts processing for compliance with a legal obligation, including the employer's constitutional and statutory anti-discrimination obligations. Section 30(1)(b)(vii) covers legitimate interests absent unwarranted harm to the data subject, Section 45(c)(i) permits processing for establishment, exercise or defence of a legal claim, and Section 51(2) exempts disclosure required by law or court order.
Whether the Claimant breached his duty of confidentiality under the Respondent's Stafi Handbook
He did not; the leave records were neither trade secrets nor restricted confidential information.
Confidentiality clauses protect business secrets. Following Leland I Salano v Intercontinental Hotel and the Quinlan case relied on therein, confidential information acquired in service may be used unless it is a trade secret or equivalent. There was no evidence of restricted access or passwords, and the Claimant held a senior management role from which broad human resource information access would be expected.
Whether the Respondent should be granted leave to file a supplementary bundle of documents
Leave granted and the bundle deemed duly filed and served.
Rule 14 of the ELRC Procedure Rules 2016 empowers the Court to allow filing of supplementary documents after closure of pleadings. The Stafi Handbook defined the parties' relationship and was referred to in the Statement of Claim, so the Claimant suffers no prejudice. Any dispute over the Kshs. 150,559 payment and its alleged reversal can be resolved through the Claimant's evidence.
Legal principles established
#- An employee alleging workplace discrimination must produce comparators' evidence, and the Data Protection Act 2019 does not prohibit use of comparators' data for establishing discrimination at the workplace; consent of the data subjects is not necessary where the data is used in legal proceedings to enforce anti-discrimination obligations.
- Confidential information acquired by an employee in the course of service may be used after service has ceased, unless it is a trade secret or so confidential as to require trade-secret protection.
Court orders
#- 1.Prayer [1] of the Respondent's Application dated 21st November 2023, seeking to strike out the Claimant's documents at pages 7 to 13 marked 'TAS-20', is declined
- 2.Prayers [2] and [3] of the Application seeking leave to file the supplementary bundle of documents dated 21st November 2023, and deeming the bundle as duly filed and served, are granted
- 3.Costs in the cause
- Jurisdiction invoked
- Section 3 of the Employment and Labour Relations Court Act; Employment and Labour Relations Court [Procedure] Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bajaber v Planning Systems Services Limited (Cause E871 of 2021) [2024] KEELRC 1462 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1462/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.