In a landmark ruling, the Employment and Labour Relations Court in Kisumu has decided that employees who sexually harass their colleagues at work can be lawfully dismissed, even where an employer lacks a formal sexual harassment policy.
The court held that offenders cannot use the lack of such a policy as a defence, affirming that respect, dignity and professional conduct are non-negotiable obligations in every workplace, even in the absence of a written manual.
The judgment sets a significant precedent for how courts will view sexual harassment cases, as it establishes that employers can still discipline offenders even when their policies fall short of statutory standards.
In a case involving a manager dismissed for sexually harassing a female cleaner, the court found that the offender could not use the lack of a sexual harassment policy or the absence of CCTV footage to challenge his dismissal.
The manager, identified only by initials TOO, to protect the identities of both parties, had sued a non-profit organisation after being summarily dismissed in August 2024 on allegations of sexual misconduct. The claimant was anonymised as RE.
The complainant, who was five months pregnant at the time, told the court that the manager had made sexually explicit remarks to her and indecently exposed himself to her while she was at work.
She also testified that he had sent her nude photos via WhatsApp, which he later deleted.
TOO told the court that the accusations were false, unsubstantiated and motivated by malice. He also argued that his dismissal was procedurally unfair, stating that he had been denied the opportunity to cross-examine his accuser and that the firm had relied on a non-existent policy.
He also claimed that he had given the former colleague snacks and money.
TOO had sought damages and terminal dues amounting to Sh1.78 million, citing violations of the Employment Act and the Fair Administrative Action Act.
But, the judge dismissed his argument, ruling that the absence of a formal policy under Section Six of the Employment Act did not invalidate disciplinary action against an employee accused of sexual misconduct.
“The court is satisfied that the respondent’s sexual harassment policy was sufficient, despite the respondent not having put in place a sexual harassment policy in terms of Section Six of the Employment Act.
“The fact the claimant [TOO] understood the ramifications of the accusations levelled against him indicate the absence of the sexual harassment policy in terms of Section Six was neither here nor there,” reads the judgment.
The judge held that the employer had followed due process in dismissing the claimant, noting that he had been given an opportunity to respond to the charges and participate in the disciplinary hearing.
The court dismissed the claimant’s contention that the case was weakened by the absence of CCTV evidence, the complainant’s failure to report the matter to police or her earlier acceptance of snacks and small cash gifts from him.
“The fact that she had accepted snacks from TOO does not make her complicit in any way in the misconduct by the claimant. The conduct of the claimant fits in the classic mould of sexual harassment as he chose the time the victim was cleaning the office, when no one else was around to harass her,” the judgment states.
The NGO informed the court that the dismissal was both “procedurally and substantively fair” and followed internal investigations that substantiated the sexual harassment allegations.
The firm said that the claimant had been issued with a show cause letter, had responded to it, and had been heard in a disciplinary hearing before the decision was made.
