I was employed at a firm for four months after which I was dismissed. During my last week, my employer approached me in private for some sexual favours promising me a promotion in return. I refused his advances and he fired me the next day. What recourse do I have in law? Mary
Mary, its very unfortunate that you were sexually harassed at work in Kenya. This is a problem that many women go through.
Sexual harassment in Kenya can be defined as unwelcome and unwanted sexual advances, requests for sexual favours and other verbal or physical contact of a sexual nature that creates a hostile or offensive environment.
According to Section 6 of the Employment Act 2007, a worker is said to be sexually harassed if the employer or its representatives or a co-worker request directly or indirectly for any form of sexual favour in order for the victim to get preferential treatment at the workplace, or threaten the worker of detrimental treatment on present or future employment status of the worker.
Employers are required to have policies dealing with sexual harassment in the workplace. If an employer does not have this, then they are in breach of the law set out in the Employment Act.
This was the situation in the case of CAS v CS Limited (2016) where the employer was found to be in breach of the Employment Act for failure to have such a policy in place.
Sexual harassment is also a criminal offence under s. 23 of the Sexual Offences Act no. 3 of 2006 which states that any person in a position of authority who makes sexual advances that he knows to be unwelcome is guilty of the offence of sexual harassment and is liable to imprisonment for not less than three years or a fine not less than one hundred thousand shillings or both. In order to prove this, it is necessary to show that the sexual advances were intended to affect the career of the victim and that such advances interfered with the victim’s work performance.
So Mary, you can claim damages as against your employer for sexual harassment and again for unfair termination. You cannot be fired without notice or without pay in lieu of notice. By virtue of Section 35(1)(c) of the Employment Act 2007, you were entitled to a written notice of twenty eight days before being dismissed. Without that, the court will say that you were unfairly terminated and compensate you unto a maximum of 12 month of your gross salary.
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