On 29 September 2022, the Employment and Labour Relations Court dismissed a Petition challenging a government memorandum issued on 5 August 2021 by which the Head of the Public Service in Kenya required all public officers to take the COVID-19 vaccination by 23 August 2021 (“the Memorandum”).

Among the directives issued by the Memorandum was that any public officer who did not get vaccinated would undergo a disciplinary process and possible withholding of salary and benefits, as well as termination of employment.

Apart from alleging that the Memorandum was tantamount to discrimination of public officers, the Petitioners’ case was that the mandatory vaccination introduced a new obligation in a public officer’s contract of employment, violated among other rights, the right to fair labour practices. 

In response to the petition, the Public Service Commission argued that, as a government institution, it was mandated to ensure that public officers and the public were protected and as such, it was in the interests of the Kenyan public that all public officers get vaccinated.

The arguments in favour of the orders sought in the Petition included that; 

• the right to health included the right to be free from non-consensual medical treatment. 
• a vaccine mandate could not be implemented without the informed consent of the recipient of the vaccine.
• an employee who declines a vaccine, must be heard before being ‘punished’. 

The court’s decision

In dismissing the Petition, the court held in part, that:

• Mandatory vaccination was permissible in Kenya pursuant to the provisions of the Constitution; the Employment Act, 2007; the Health Act, 2007; and the Occupational Safety and Health Act, 2007.
• mandatory vaccination was necessary and justified under the principle of social impact.
• Kenyans are already subject to mandatory vaccinations from birth.
• the exercise of the Public Service Commission’s power to issue a vaccine mandate did not violate an individual’s rights or freedoms. 
• individual rights and freedoms cannot override other persons’ right to life.
• employees have an obligation to comply with safety and health directives given by an employer, pursuant to the Occupational Safety and Health Act, 2007.
• the COVID-19 pandemic constituted a medical emergency in view of the serious public health risks and as such, the mandatory vaccination was an exception to the rule under the Health Act, 2017 that informed consent was always required before administering medicine.
• because consent is sought before vaccines are given, no one is compelled to take a vaccine. 
• the Public Service Commission would be entitled to terminate the employment of employees who failed or avoided to get the vaccine, as long as the legal requirements under the Employment Act, 2007 were adhered to.

What this means for employers

The case seems to allow for an employer to put in force a mandatory vaccination policy in the workplace where the ‘social impact’ of failing to do so can be justified. This would, for example, be in industries or workplaces where there is large interaction with the public, or where it can be demonstrated that the public could be exposed to risk of exposure to infections.

We would caution against using the case as a basis for blanket implementation of mandatory vaccinations in the workplace, particularly where the ‘social impact’ of such a policy cannot be demonstrated.

Before a vaccine mandate is issued by an employer, it is imperative that employees are informed of the need and justification for the mandate and legal advice is obtained in any event, prior to doing so.