Employee discrimination: Are you exposing your firm to costly awards?


Cases of discrimination must be investigated and dealt with expeditiously, fairly and consistently. FILE PHOTO | SHUTTERSTOCK

After the publication of my article, Discrimination at work: What every employer should know in the Business Daily on February 15, 2023, a reader e-mailed me, saying; “From your article, I find it interesting that more people are coming out to report and pursue lawsuits. For my future confidence, could you please share some success stories or cases in Kenya? Also, where does the Ministry of Labour get involved in all this? What about employees in government, what are their chances of fair cases?”

Employees have won discrimination cases against employers and have been awarded millions of shillings in Kenya.

In this article, I will share successful employment discrimination lawsuits, their impact on an organisation, and measures employers and Human Resource (HR) managers should take to avoid costly financial awards.

In April 2022, the Employment and Labour Relations Court awarded a female employee Sh500,000 for discrimination over pregnancy.

The employer had terminated her contract on charges she proved was on account of her pregnancy, and therefore discriminatory.

Read: Probationary periods at work and what you need to know

In another case in 2020, an employee was awarded Sh5 million in damages for discrimination.

In another Supreme Court petition 36 of 2019, an employee who petitioned against discrimination and unfair termination on account of their health status was awarded Sh4.7 million as discrimination damages, and unfair termination.

In almost all cases, there is an element of unfair elimination or breach of the process of Fair Administrative Action as enshrined in the Constitution.

In a landmark case in 2019, a blind petitioner was awarded Sh6 million against a leading telco because their “right to be treated with dignity as provided for under Articles 28, 41 and 54(1) and Fair Administrative Action under Article 47 were violated by the company”.

The telco had withdrawn a letter of employment as it had not installed equipment for use by the employee.

In 2014, the Employment and Labour Relations Court ruled in favour of an employee, awarding “Exemplary damages for discrimination on account of disability equivalent to Sh5 million and 12 months’ salary for unfair termination."

The employer had terminated the employee's contract alleging poor performance after the employee became paralysed in an accident.

The employer also purported to restructure the employee’s department, hence affecting their work, yet they had not made any effort to offer alternative duties.

Schools have also been ordered by courts to allow pupils to wear clothes associated with their religion, or to be allowed to worship on specific days.

So how does discrimination affect an organisation? Any form of discrimination in the workplace creates job insecurity, stifles communication, and creativity, creates groupings of negative agendas, and deep mistrust.

Morale plummets, employees disengage from the mission, vision, and strategic objectives of the organisation and performance is affected and profits stagnate.

Discrimination hinders talent and career growth. Staff turnover is high, and an organisation will have difficulty attracting and retaining highly skilled staff required to drive its strategic objectives.

Discrimination against women denies them the opportunity to develop and participate effectively in business. It also defeats the principles and intent of diversity, equity, and inclusion.

Poor governance and accountability standards, poor work values and culture affect the company’s relationship with stakeholders.

Discrimination lowers employees’ self-confidence and affects their mental health.

To prevent discrimination, employers and HR managers should ensure they understand what constitutes discrimination in employment, and align their HR policies to the applicable laws.

Read: The road to employment hell

They should audit their HR policies and any business operations to identify and eliminate any discriminatory aspects.

Anti-discrimination and a code of conduct should form part of mandatory onboarding and continuous training. Cases of discrimination must be investigated and dealt with expeditiously, fairly and consistently.

The CEO, senior management, and HR managers bear the greatest responsibility of creating a workplace free of discrimination, hence saving shareholders and boards millions of shillings in avoidable court awards.

Mr Muya is a HR, coach and strategist [email protected]