Health workers are prohibited from going on strike unless there is an agreed formula of minimum service retention at every affected medical facility, the High Court has ruled.
In a decision, a bench of three judges said the right to industrial action is not absolute but is subject to a limitation within the parameters of Article 24(1) of the Constitution.
The judges noted that in some countries, a public employer is given the authority to determine the classification of employees who must continue to work during the work stoppage, the number and names of employees within each category and the essential services that are to be maintained.
“We are, however, convinced that the right to go on strike for these workers is qualified and is therefore contingent upon retention of ‘minimum service’ at the affected facilities to ensure that there is no danger to life or health of members of the public,” Justices Monica Mbaru, Jorum Abuodha and Linnet Ndolo said.
The judges directed Health and Labour Cabinet secretaries, together with stakeholders in the sector to develop guidelines within a year to effect the judgment.
The three judges of the Employment and Labour Relations Court ruled that outright prohibition of the right to go on strike would deviate from the core of that right, hence the need to have minimum services when it happens.
“Industrial action by health workers is not permitted unless there is a known and acceptable formula of ‘minimum service’ retention at every affected health facility,” the judges said.
In the case, Joseph Otieno Oruoch sued Kenya Medical Practitioners Pharmacists & Dentist Union and Kenya National Union of Nurses, arguing that frequent strikes have led to a loss of lives.
He said the right to life is superior to the right to participate in industrial action.
He added that health workers, being in the essential service providers category, should be prohibited from taking industrial action as it has led to a loss of life, which is irreversible.
The judges said under the Fourth Schedule of the Labour Relations Act, hospital services have been listed as an essential service.
The same Act defines an essential service as a service whose interruption would probably endanger the life of a person or the health of the population.
Mr Oruoch said the provision of quality healthcare services is deteriorating steadily, following frequent strikes by doctors and nurses.
He said in 2015, many people died in hospitals across the country, following a strike by health workers.