The Employment Act 2007, in section 6, mandates employers with employees exceeding Twenty (20) to have a sexual harassment policy. This policy is supposed to, among others, guide the conduct of employees and staff in their day-to-day interactions with each other, laying down the unaccepted practices and attaching penalties to any outlined offence. The Employment Act therefore allows an employer to terminate an employee’s employment by virtue of misconduct, including grounds of sexual harassment and intimidation.

In the case of British Army Training Unit Kenya (BATUK) -v- Kairu Mutahi, the Court of Appeal graveled with the question of the termination of an employee’s employment on grounds of sexual harassment and intimidation of other employees.

The facts of the case were that the employee was employed by BATUK since 1984. He worked continuously until his first suspension of 24^th February 2016 and second suspension on 3^rd March 2016, both on the grounds of sexual harassment and intimidation at the workplace. He was called for an investigatory disciplinary hearing, which he attended and his employment was later terminated on 14^th July 2016. The employee moved to the Employment and Labour Relations Court on allegations that his employment was unprocedurally and unfairly terminated for the reason that he was not accorded a fair hearing because he was not allowed to cross-examine witnesses. The employer argued that the disciplinary hearing was conducted fairly in the circumstances, and that the identities of the witnesses were not revealed due to the sensitivity of the matters; hence the employee was not entitled to cross examination of the witnesses.

The Employment and Labour Relations Court agreed with the employee that his termination was unprocedural and unlawful, since he was not given a chance to cross-examine the witnesses or complainants during the investigatory disciplinary hearing. The employer appealed to the Court of Appeal against this finding, stating that cross-examination was not necessary nor was it unfair or contrary to natural justice. BATUK further argued that the names of the witnesses could not be disclosed over concerns of intimidation and it was entitled to such a discretion. It stated that a thorough investigatory hearing was conducted and all the witness statements were shared with the employee to enable him prepare for the disciplinary hearing.

The Court of Appeal, in assessing the procedure for termination of the employee’s employment, interrogated the conduct of the employer during the disciplinary hearing. The Court of Appeal applauded the process, which involved giving the employee a show cause letter, allowing the employee a chance to respond, inviting the employee to a disciplinary hearing and allowing him to be accompanied by a witness during the hearing. However, the Court of Appeal stated the employee ought to be given a chance to cross examine the witnesses and/or complainants, since this was the evidence of the employer on the ground of sexual harassment. The rules of natural justice apply at any level where a person’s fundamental rights are likely to be violated. The Court therefore agreed that the employee’s termination of employment was unprocedural and unlawful, since the employee was put through a process that was to determine whether his right to earn a livelihood would be taken away from him, yet he was not given an opportunity to face his accusers at the disciplinary hearing. This conduct by the employer therefore vitiated the whole process since it could not be proved that the complaints were made genuinely or maliciously as against the employee.

Conclusion

The upshot of this case is that the Court of Appeal has laid down the procedure for termination of an employee’s employment on the ground of sexual harassment. It is thus not enough that the employer has complied with the process of termination under section 45 of the Employment Act by giving a show cause letter, receiving a response from the employee in question, conducting a hearing and allowing an employee to have a witness during the hearing.

The employer has to further comply with section 6(3)(b)(v) of the Employment Act, 2007 by disclosing the statements of complainants and allowing the accused to question his/her accusers during the hearing. This thus calls employers to a higher standard of compliance with the rules of natural justice and fair hearing to qualify the disciplinary procedure and subsequent termination on the ground of sexual harassment.

By T. Kehonji

kehonji@alakonyalaw.co.ke

6^th February 2024