KENYA: IT IS DISCRIMINATORY TO PROVIDE DIFFERENT TERMS AND CONDITIONS OF EMPLOYMENT TO PERMANENT AND TEMPORARY EMPLOYEES IN THE SAME CADRE

By Quinter Okuta,Cecil Kuyo Tuesday, December 13, 2022
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On 30 November 2022, the Employment and Labour Relations Court allowed a claim filed by former temporary employees of KCB Bank Kenya Ltd (the Bank) alleging unfair labour practices and discrimination at the workplace due to a violation of the principle of equal pay for equal work. 

The Claimants case was that while they were employed under fixed-term contracts as clerks, they had the same job description and performance appraisal system as permanent clerks. Further, they argued that they did not receive the same pay and benefits under the Employment Act, 2007 (the Employment Act) and the Collective Bargaining Agreement (CBA) entered between the permanent clerks and the Bank. 

In response to the claim, the Bank argued that the law allows for fixed-term contracts and that the Claimants had individually consented to each contract without fraud or misrepresentation.

The Claimants argued that the terms of their employment were inferior compared to the superior terms of the permanent employees. For instance, they claimed underpayment of wages, the difference in annual leave days, medical cover benefits, entitlement to a pension scheme, award of bonuses, implementation of the work-from-home policy and house allowances. The Claimants relied on the CBA to support their allegation of discriminatory treatment between permanent clerks and those employed under fixed-term contracts. 

The Court’s decision

The Court, in allowing the claim held that there was discrimination against the Claimants contrary to the Employment Act, the Constitution of Kenya, 2010 and the ILO Discrimination (Employment and Occupation) Convention, 1958. This is because the Bank treated the clerks on fixed-term contracts differently from the permanent clerks despite the employees having the same job description. The Court explained that it is not up to an employer to apply unfavourable terms and conditions on any employee, including temporary employees, where the basic minimum terms and conditions are already negotiated for unionisable employees in the same cadre, such as under a collective bargaining agreement.

The Court further held that an employer is obligated by the Employment Act to apply the terms and conditions under a collective bargaining agreement as the basic minimum terms of employment. An employer who fails to disclose an existing collective bargaining agreement to an employee may be liable for fraud and misrepresentation. In addition, the employee’s consent to the employment contract is negated.

Consequently, the Court found that the Bank’s conduct amounted to unfair labour practices entitling the Claimants to general damages for discrimination, damages for underpayment and all other entitlements that had been provided to the permanent clerks. 

What this means for employers

The decision is another example of the Court supporting the principle of equal pay for equal work. Before a fixed-term contract is issued to an employee, it is imperative for the employer to consider the job description vis a vis any collective bargaining agreement entered between the employer and a union with respect to the relevant cadre of employees. It would be important to obtain legal advice on the terms and conditions of a fixed-term contract to avoid such a discrimination claim. Employers should ensure that the benefits under employment contracts for the same cadre of employees are standardized to apply equally to the permanent employees and the employees under contract.