Abstract

Section 5(3)(a) of the 2007 Kenyan Employment Act prohibits employers from discriminating against employees on specified grounds. Likewise, article 27(4) of the 2010 Constitution also prohibits discrimination on certain grounds some of which are not included in the Employment Act. Jurisprudence dealing with discrimination matters from the Employment and Labour Relations Court (ELRC) (formerly known as the Industrial Court) indicates the extent to which the court has protected employees’ right to freedom from discrimination. There are cases, however, in which the ELRC has reached debatable conclusions, for example, by holding that the list of grounds under s 5 of the Act is exhaustive. There are also cases in which employees have alleged discrimination by employers where the court has placed more emphasis on the Constitution as opposed to the Employment Act. The author analyses these cases by focusing on the following issues: the definition of discrimination; prohibited grounds of discrimination; permissible discrimination; burden of proof and standard of proof when an employee alleges discrimination; and employers’ accountability for discrimination. Where necessary, the author suggests ways in which the ELRC can better approach the issue of discrimination.