When an employee commits a safeguarding violation, whether sexual harassment, abuse of power, or exploitation of a vulnerable person, the question of employer responsibility is rarely straightforward. In Kenya, the law imposes significant obligations on employers, not merely to act once harm occurs, but to prevent it altogether.
The Statutory Foundation
The primary instrument is the Employment Act, No. 11 of 2007. Section 6(1) of the Act defines sexual harassment and provides that any behaviour creating a hostile, intimidating, or offensive work environment can constitute harassment, assessed by its impact on the victim, not the intent of the perpetrator. Section 6(2) further requires any employer with twenty or more employees to issue a written sexual harassment policy. This is not a discretionary measure; it is a statutory obligation with direct legal consequences.
The constitutional dimension reinforces these duties. Article 41 of the Constitution of Kenya, 2010 guarantees every person the right to fair labour practices, while Article 28 protects human dignity. Courts have consistently linked a failure to safeguard employees against misconduct to a breach of these constitutional guarantees.
Vicarious Liability
Under Kenyan law, an employer can be held vicariously liable for acts of sexual harassment or safeguarding violations committed by employees if the employer failed to take reasonable steps to prevent them. Without a robust, communicated policy, an organisation may be held responsible for creating or allowing a hostile work environment. The threshold for liability, therefore, is not merely whether the employer “knew”, it is whether the employer had adequate systems to prevent harm.
Recent Court Decisions
The Employment and Labour Relations Court (ELRC) has been unambiguous. In CNR v FITM & Another (Cause E204 of 2021), the court held that an employer who had no sexual harassment policy in place had failed the claimant, and that this failure amounted to an unfair labour practice in contravention of Article 41(1) of the Constitution, violating the claimant’s inherent human dignity.
In Kirui v Ekaterra Tea Kenya PLC (Cause E013 of 2023, judgment delivered July 2024), the respondent carried out independent investigations following a BBC exposé on sexual exploitation at its farm, received several complaints against the claimant, a senior divisional manager, and ultimately summarily dismissed him for sexually harassing female employees contrary to its internal Policy on Respect, Dignity and Fair Treatment. The case illustrates both the employer’s duty to investigate proactively and to act decisively when findings support gross misconduct.
Crucially, where an employer does investigate but follows a defective process, the courts remain unsympathetic. Terminating an employee on allegations of misconduct is a serious matter. The Employment Act places the burden of proof on the employer to demonstrate that the reason for termination is factual, the employer is not given the liberty to dismiss based on mere allegations.
The Process Obligation
Section 41 of the Employment Act requires that before terminating employment on grounds of misconduct, an employer must explain the reasons to the employee in a language they understand and allow them to be accompanied by a colleague or union representative. The employer must then hear and genuinely consider any representations made. Where an employer short-circuits this process, even in cases of genuine and serious safeguarding harm, the termination risks being declared unfair.
Conclusion
An employer in Kenya occupies a dual position in safeguarding matters: it is simultaneously under a duty to protect victims and to afford procedural fairness to accused employees. Getting either obligation wrong carries significant legal and financial exposure. Under Section 47(5) of the Employment Act, when an unfair termination claim reaches the ELRC, the burden of proof rests entirely on the employer to show the termination was lawful, substantively fair, and procedurally correct. Prevention, policy, and process are not optional extras, they are the employer’s legal armour.
