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Court: Removing staff from office WhatsApp groups illegal, awards woman Sh4.4m
The Employment and Labour Relations Court held that severing an employee from workplace communication platforms constitutes a breach of fair labour practices.
The Employment and Labour Relations Court has ruled that removing an employee from work-related WhatsApp groups can amount to unlawful discrimination and constructive dismissal.
The court also held that severing an employee from workplace communication platforms constitutes a breach of fair labour practices, establishing clear boundaries on how employers may use digital tools to marginalise staff.
The ruling arose in a case against Hallmark Marketing Limited, where the court found the company had constructively and unfairly dismissed Fidelis Wambui by removing her from workplace communication channels—including WhatsApp chat groups and emails—while she was on a pregnancy-related sick leave.
Fidelis Wambui was removed from workplace communication channels—including WhatsApp chat groups and emails.
Photo credit: File | AFP
The court awarded Ms Wambui Sh4.4 million in damages for unfair termination and violation of her constitutional rights.
The court determined that removing the employee from all work platforms during authorised sick leave was a fundamental breach of contract, rendering the employment relationship "intolerable and unbearable."
Ms Wambui had worked as a customer service officer at the agency since March 2016. She testified that she never received a formal appointment letter, itemized payslips, or house allowance.
In March 2021, she developed pregnancy-related complications and was placed on medically recommended bed rest. After informing her employer, she later notified the company’s CEO that she required an additional 28 days of leave.
She described the response as hostile. Two days later, on April 15, 2021, she received a letter informing her that she was being placed on indefinite unpaid leave, citing the Covid-19 pandemic.
Before her leave commenced, the company disconnected her from work communication systems. She recounted being removed from all 21 work-related WhatsApp groups and having her email access blocked.
Inhuman treatment
She argued that these actions amounted to constructive dismissal motivated by her pregnancy, violating her constitutional rights to equality, dignity, freedom from inhuman treatment, and fair labour practices.
Hallmark Marketing denied discrimination, asserting its commitment to supporting women, evidenced by its female-majority management and workforce.
The company claimed it operated as an agency where staff engagement depended on client contracts.
The company attributed Ms Wambui's unpaid leave to financial restructuring necessitated by the pandemic and the loss of client contracts, including one with Githunguri Dairy Farmers Co-operative Society.
It invoked force majeure and reiterated its support for women employees. Additionally, it said Wambui was not a diligent employee and had prior performance issues, for which she received warnings.
Further, it questioned the authenticity of her medical documents supporting her extended sick leave request.
However, the court dismissed the claim that her employment was fixed-term, noting the absence of evidence supporting such contracts.
It referenced Section 10(7) of the Employment Act, which mandates employers to provide employment terms when no written contract exists.
"The consistent payment of salary over five years indicates a continuous employment relationship," the court stated.
The court found the timing of events decisive, noting that Wambui requested extended bed rest on April 13, received the unpaid leave notice on April 15, and was removed from communication channels on April 19.
"This sequence, occurring within days while the petitioner was vulnerable due to pregnancy complications, demonstrates a reaction to her pregnancy," the court ruled, rejecting the company’s claim of Covid-19 restructuring.
The court noted the absence of redundancy notices, meeting minutes, or staff-wide communications supporting the restructuring defense.
"Removing an employee from all work platforms during authorized sick leave is a repudiatory breach of the employment contract, demonstrating an intention to be no longer bound by it," the court declared, adding that the company’s actions signaled an intent to abandon contractual obligations.
Citing Section 46 of the Employment Act—which prohibits pregnancy as grounds for dismissal—the court ruled that Hallmark’s actions were "inextricably linked" to Ms Wambui’s pregnancy and medical needs.
"The purported reason for Covid-19 restructuring appears to be a pretext," the court concluded.
The Milimani law courts.
Photo credit: File| Nation Media Group
On constitutional violations, the court was unequivocal. Placing her on indefinite unpaid leave and cutting her off from communications due to pregnancy constituted "direct discrimination" under Article 27.
Subjecting her to such treatment amid health struggles and pregnancy loss violated her dignity (Article 28) and freedom from inhuman treatment (Article 29), while also breaching fair labour practices (Article 41).
The court awarded Wambui one month’s salary in lieu of notice, unpaid house allowance for 61 months, unpaid leave pay, service pay, and 12 months’ salary as compensation for unfair termination.
An additional Sh3 million was granted for constitutional rights violations, citing the "egregious nature of discrimination" and Ms Wambui’s "profound personal suffering." The total award was Sh4.4 million, plus interest from the judgment date.
