Authored By: Muthini Abigail Ndanu
Kabarak University
Abstract.
Despite the existence of gender-neutral laws in Kenya which protect employees against sexual harassment, many of the reported cases on sexual harassment involve women as the subjected ones this leads to the assumption that when the sexual harassment topic is brought up only women are subjects. These assumptions renders the men to be seen as the villains even in cases where the allegations are wrong. Is this to mean that the male workers are not subjected to sexual harassment? Or is it that the male workers are in fear of standing up and fight this violation? Or is it that all the allegations made against them are true?
This article aims in answering this questions and studying the effectiveness of the disciplinary actions with regard to sexual harassment claims made at work places without discrimination on sex. It also checks on how the disciplinary measures impact the organizations effectiveness and accountability and employee trust towards the employer.
It also highlights on the challenges and barriers that undermine the efficacy of the disciplinary actions such as fear of discrimination, and inconsistencies in enforcement of the disciplinary measures hence hinderance to their access to justice. The article also aims in proving how men can be subjected to sexual harassment at work place. It also shows how in cases where the men are faced with allegations, the procedure followed in handling the cases is sometimes biased.
It concludes by giving out recommendations on what to be implemented to ensure the efficiency of this process and promote equality in the process and therefore break the silence around male vulnerability in work place harassment which is underreported and under litigated.
Introduction.
Sexual harassment is a factor which is greatly contributing to discrimination at work place hence undermining the wellbeing of the worker and his productivity. The disciplinary of the person who subjects an employee is of essential to the continuance of the employee- employer contract and work efficiency. Although the laws have been enacted, they fail to protect male victims and they may opt to resigns or reluctant to report on the fear of the dismissal of their claims by them not being believed.
The implementation of the work policy on sexual harassment claims in most cases are handled differently depending on the victim. This clearly shows discrimination where claims involving female victims are taken into consideration hence the process of investigating is biased while for the male victim claims are most likely ignored or the victim ends up losing the job. Our Kenyan constitution advocates for non-discrimination regardless of gender hence the certainty and clarity of handling male victim claims are waving and can’t be relied on.
Work policies, as enacted in the Employment Act 2007 exist in order to address the issue from the reporting technic to the disciplinary measures effectiveness with equality without gender bias. However, it is not clear on the implementation of the same hence the process may tend to fail.
Sexual harassment is defined under the Employment Act 2007 section 6 as instances which;[1]
- A co-worker or representative directly or indirectly demand to have sexual intercourse or sexual conduct in order to get a certain benefit or threat.
- A co-worker or supervisor uses a language which is sexual in nature though texts or verbally.
- A co-worker or supervisor acts in a suggestive way to be sexual or offensive.
The Sexual Offences Act defines sexual harassment as an offence in which a person in authority makes sexual advances which are unwelcoming and is liable to imprisonment . [2]
The case of Ooko & another v SRM & 2 others( Civil Appeal 195& 197 of 2019(consolidated))[2022] KECA[3] ruled out an employee is sexually harassed if co-worker or representative shows physical behavior of sexual nature which is unwelcome.
It is a requirement under the Employment Act of 2007 that any employer who employees more than twenty or twenty employees to issue a policy statement on sexual harassment.[4] The policy entails a definition of sexual harassment, the reporting process to rise the complain if harassed and the disciplinary measures to be taken to person who subject an employee to sexual harassment.[5]
Analysis conducted by Knightwise Human Capital on unveiling shame: A tell of workplace sexual harassment in Kenyan report[6] show that 21% of male workers have been subjected to sexual harassment mostly verbally. It also shows that 86% of the respondents never reported the incident due to stigma, fear of ridicule or unawareness of their rights. The analysis also shows that 72% of the reported cases where not investigated with procedural fairness.
Therefore, on the reporting of a sexual harassment incident, it is a requirement and duty of the employer to call for a disciplinary hearing process since assault results to a misconduct.[7] The disciplinary process should reflect on a delicate balance of employer’s prerogative to enforce discipline and protect productivity on one hand and employees’ right to fairness and dignity.
The disciplinary process should be confidential in order to protect the employee subjected to sexual harassment from discrimination which may affect the effectiveness and competence of the employee hence poor performance at work.
The process should be lawful, procedurally fair where the investigations are conducted fairly, notice on cause of action issued and time to respond to the allegations clearly stated and should adhere to the work policy statement on sexual harassment. The employer should apply the policies in a lawful manner and conduct a conclusive and fair investigation before taking disciplinary measures as ruled out in the case of Mark Ngugi Mwaura v G4S Kenya limited[8] where the employer had dismissed Mark on claims of sexually harassing his subordinate without proper investigations which cleared him since the workers where in a mutual relationship.
Therefore, the disciplinary action and its measures should be highly observed and adhered to in order to ensure safe working environment for the workers and hence an improvement in productivity which will lead to economic growth.
Legal Framework .
Constitution of Kenya, 2010
- Section 27(4): no discrimination on grounds of sex, race, color or culture.[9]
- Section 28: Guarantees respect and protection of a person’s dignity.[10]
- Article 47(1): Guarantees fair administrative action, meaning any disciplinary decision must be lawful, rational, and procedurally fair.[11]
- Article 41(2)(b): Guarantees reasonable working conditions.[12]
In Judicial Service Commission v Gladys Boss Shollei [2014][13] , the Court of Appeal emphasized that even administrative disciplinary processes must adhere to constitutional principles of fairness.
The case of CSL v CASN(Civil Appeal 319 of 2017)[2020][14] ruling advocated for the right of employees to seek redress regardless of their gender. It also advocated for the following of the procedure with fairness without discrimination on sex of the victim.
Employment Act, 2007
- Section 44: Enumerates acts that amount to gross misconduct (e.g., theft, intoxication, assault, insubordination, absence without leave).[15]
- Section 5(3): Safeguards employees against discrimination.[16]
- Section 6(1) : Accounts for acts that amount to sexual harassment(e.g. direct or indirect request for sexual contact by threat or promise of better treatment, use of a language that is sexual in nature, physical behavior of a sexual nature).[17]
- Section 6(2): Demands the employee to issue a policy statement on sexual harassment if having more than twenty employees.[18]
- Section 6(3): States the contents of the policy statement on sexual harassment(e.g. definition of sexual harassment in reference to situation, disciplinary measures deemed right, the process to fill the complaint, confidentiality)[19]
- Section 6(4): the requirement of employer to bring to attention the subject to the complaint.[20]
Sexual Offences Act, No. 3 of 2006
- Section 23(1): Defines sexual harassment as an offence punishable by imprisonment or fine in which a person in authority makes sexual advances which deems be unwelcomed.
- Section 23(2)(a)(b): Outlines necessities to be proved where the advances where unwelcomed and affected the victim in his work.[21]
Labour Relations Act, 2007
- Provides for recognition of trade unions and CBAs.
- CBAs often contain detailed disciplinary codes (e.g., timelines, stages of warnings, and appeal rights) that bind employers.
In Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v North Coast Beach Hotel Ltd [2015] KLR[22] , the Employment and Labour Relations Court ruled that employers must follow both the Employment Act and the terms of CBAs in disciplinary matters.
Judicial Interpretation.
MNM v G4S Kenya Limited(Cause E232 of 2021)[2024]KEELRC 2248(KLR)( 20 September 2024)(Judgement)[23] is one of the landmark case that shows the procedural fairness should be upheld in the conduction of the investigation of the claims and implementation of the disciplinary actions without regard to the gender.
In this case, the claimant was employed as a Management Trainee on 3rd March 2000.he was later appointed as Regional Operations Manager at Nairobi on 31st August 2018 after acting as District Manager at Nakuru from 1st April 2001. He held the position until 22nd December 2020 when he was issued with a termination letter for his employment contract. The allegations where that he had sexually harassed AM, getting her pregnant and even influenced her transfer from being a guard to a receptionist. On denying the allegations, he was demanded by the respondent to take a DNA test to show that he was the father of AM’s daughter which he complied and the results where negative. On both AM and the claimant appearing for a disciplinary hearing, AM testified that they had a sexual relationship which ended after she fell out of love with the claimant and could not say that the claimant had harassed her and that the pressure for the complain was for him to pay child support was because she thought the child was his as she told the investigating committee which was proved against by the negative results of the DNA test done by the Bioinformatics Institute of Kenya. The respondent therefore dismissed AM for false accusations but went ahead and dismissed the claimant on those same accusations without further investigations as recommended by the investigating committee. The claimant therefore filed for unfair termination.
The court held that there was a difference between a sexual relationship and sexual harassment which the respondent failed to appreciate. It also held that the respondent’s Sexual Harassment Policy which forbid sexual relationship was a violation of human right to privacy since sexual relationship is private. In consideration to AM action of blackmailing the claimant for child support for a child which wasn’t his amounted to sexual harassment hence the no grounds to terminate the claimant since the respondent had already terminated AM for false accusations of sexual harassment. The court therefore ordered that there were no legal grounds for the termination proved by the respondent as required in section 43 and 45 of Employment Act of 2007 hence it amounted to unfair termination and his prayers for compensation where allowed.
It is clear that the respondent failed to conduct fairness in the investigations of the allegations due to assumptions that the lady had been harassed. This proves the discrimination in the administration of the disciplinary action where men are always seen as villains. This also show how men may be subjected to sexual harassment but fail to report.
Conclusion and Recommendations.
It is therefore clear that there is no procedural fairness upheld in the disciplinary action due to presumptions. This is what has led to the stigmatization of male workers and the fear of being ignored hence failure to fill their complains.
It is also evident that men may be subjected to sexual harassment indirectly and dure to their lack of knowledge that they are being harassed they fail to take action towards their perpetrators which explains the near none reported cases which men are victims.
This article therefore recommends:
- The judiciary should set up rules or fixed fine to be enacted to an employer who fails to take steps to ensure that no employee is subject to sexual harassment at work place or who fails to follow the disciplinary procedure fairly.
- The employees should ensure the existence of an effective work policy protecting employees from sexual harassment.
- The employers should oftenly offer training on the process to report unbearable working conditions created by co-workers or those in authority over the work and create a conducive environment for the employees to have trust on the work policy set for addressing the grievances.
- The employers should practice procedural fairness regardless of the gender when conducting disciplinary hearings and investigations on work grievances hence avoid bias.
- Employers should ensure that the work policy they set with consent of the employee are upheld and action is taken against whoever violates the rules in the policy.
- The men should be encouraged to come out and educated on their right against sexual harassment and discrimination in the conduction of disciplinary actions on sexual harassment cases.
Reference(S):
[1] Employment Act 2007 section 6
[2] Sexual Offences Act No. 3 of 2006 section 23(1)
[3] Ooko & another v SRM & 2 others(Civil Appeal 195&197(consolidated))[2022] KECA
[4] Employment Act 2007 section 6(2)
[5] Employment Act 2007 section 6(3)
[6] Unveiling Shame: A Tell of Workplace Sexual Harassment in Kenya Report – Knightwise Human Capital
[7] Employment Act 2007 section 44
[8] Mark Ngugi Mwaura v G4S Kenya limited[2014] eKLR
[9] Constitution of Kenya 2010 section 27(4)
[10] Constitution of Kenya 2010 section 28
[11] Constitution of Kenya 2010 Article 47(1)
[12] Constitution of Kenya 2010 Article 41(2)(b)
[13] Judicial Service Commission v Gladys Boss Shollei [2014]
[14] CSL v CASN(Civil Appeal 319 of 2017)[2020]
[15] Employment Act 2007 section 44
[16] Employment Act 2007 section 5(3)
[17] Employment Act 2007 section 6(1)
[18] Employment Act 2007 section 6(2)
[19] Employment Act 2007 section 6(3)
[20] Employment Act 2007 section 6(4)
[21] Sexual Offences Act, No 3 of 2006 section 23(2)(a)(b)
[22] Kenya Union of Domestics, Hotels, Educational Institutions and Hospital Workers v North Coast Beach Hotel Ltd(2015)
[23] MNM v G4S Kenya Limited(Cause E232 of 2021)[2024] KEELRC 2248(KLR)(20 September 2024)(Judgement)
