Personal Finance

Little known labour right can help tackle harassment

boss

When you can prove his harshness at work, you can sue. FILE PHOTO | NMG

Labour rights are becoming stronger globally, including in Kenya. Labour rights are separately provided for in the Constitution.

Despite this, there is a lot of injustice in the workplace. Today, I focus on harassment.

The most recognised forms of harassment in the workplace include sexual harassment, assault, intimidation and discrimination.

These are easy to recognise, some of them bordering on being criminal, for example when an employer assaults or sexually defiles an employee.

In 2016, a junior clerk was awarded Sh1 million by the courts for sexual harassment by her employer.

These vices are also morally wrong.

But the good news is that when such incidents take place, the law is on the side of the employee. The Employment Act in Sections 5 and 6 prohibit workplace discrimination and sexual harassment.

Discriminatory employment practises can be on grounds of religion, political beliefs, sex, gender, HIV status and even pregnancy. I believe it can include age. Employers are encouraged to promote equal opportunities for staff.

Indeed, many businesses are branding themselves as “equal opportunities employers” meaning that all persons stand an equal chance of employment.

In the case of JAO Vs Homepark Caterers & Ano., JAO was an HIV positive waitress who sued a doctor and her employer for wrongfully terminating her after the doctor disclosed to the employer that the plaintiff was HIV positive.

READ: Where do we draw the line on workplace sexual harassment?

JAO won the case and the same received a lot of global attention especially from health activists. So the law is, one cannot be sacked solely due to their HIV status.

Similarly, an employer who sacks a woman for falling pregnant exposes himself to labour action, as such sacking may be deemed to be discriminatory.

There is now a new and little enforced labour right where an employee can recover damages in what is known as constructive dismissal. This is where an employer treats the staff with such “harshness” and unfairly that the employee is left with no option but to resign.

It is common that when a boss doesn’t like you they can make your life so difficult until you are forced to resign. The good news is that in certain cases you can recover damages from your employer and that is usually one year salary.

However, there are benchmarks to be met. You have to show that the employer’s actions were so unreasonable that you had to resign.

Some examples that may trigger constructive termination include workplace defamation where an employer falsely spoils your reputation, leading to a hostile environment. An employer forcing you to compromise ethical values to the point of resigning also makes the list.

It is a little known labour right but it is gaining increase in Kenya.