Kenya
This summary of age discrimination law in Kenya has been prepared by Anjarwalla & Khanna: https://aln.africa/our-offices/anjarwalla-khanna/. This summary is intended to give a brief general overview of age discrimination in Kenya and should not be relied upon as legal advice.
Overview
Discrimination is the affording of different treatment to different persons attributable wholly or mainly to their respective descriptions (by a protected characteristic) whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.
The Constitution of Kenya, 2010 (the Constitution), which is the supreme law of the country, under Article 27(4) provides as follows:
“The state shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.”
The Employment Act, 2007 (the EA) promotes equality and prohibits discrimination at the workplace.
Section 5(3)(a) provides that “no employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, marital status or HIV status.” This covers recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment. Whilst age discrimination is not specifically listed under section 5(3)(a), this does not in any way allow employees to be discriminated by their employers on the basis of their age as per the Constitution.
The Employment and Labour Relations Court has also held that under section 5(2) of the EA, an employee may establish a case for discrimination on the grounds of age. The relevant provision provides that “an employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice.”
Who is covered
The EA covers all employees employed by any employer under a contract of service save for:
the armed forces or the reserve as respectively defined in the Armed Forces Act (Cap. 199);
the Kenya Police, the Kenya Prisons Service or the Administration Police Force;
the National Youth Service; and
an employer and the employer’s dependants where the dependants are the only employees in a family undertaking.
What claims are most common and what are the trickiest issues for employers?
Claims brought by employees on the basis of early retirement and age limits in job vacancies are common.
Are there any specific exceptions in your laws?
Section 5(4) of the EA
provides that the following will not be classified as discrimination in employment:
taking affirmative action and measurers consistent with the promotion of equality or the elimination of discrimination in the workplace;
distinguishing, excluding or preferring any person on the basis of an inherent requirement of a job;
employing a citizen in accordance with the national employment policy; or
restricting access to limited categories of employment where it is necessary in the interest of State security.
Based on the above, age has been invoked as a positive discrimination ground in the specified circumstances.
It is important to note that the courts have adopted a strict approach in their interpretation of Section 5(4) of the Employment Act as seen in James Mwathi Nguri v Egerton University [2013] eKLR where the court held that: “…the respondent would be entitled to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job, it is the court’s finding that on the respondent’s yard stick to so distinguish, exclude or prefer, discriminatory practice was invoked against the claimant.”
An employer is also allowed to terminate the employment contract when an employee attains a mandatory retirement age (if any) (see below) and there is no requirement that the employer demonstrates justification in these retirement cases.
Retirement age
The EA does not contain provisions on the age of retirement for employees in the private sector.
The Public Service Commission Act stipulates that a public officer may retire from public service on attainment of the mandatory retirement age which is 60 years or on attainment of 50 years. The 2016 Human Resource Policies and Procedures Manual for the Public Service also provides that all officers shall retire from the public service on attaining the mandatory retirement age of 60 years and 65 years for persons with disabilities and/or as may be prescribed by the government from time to time.
The Constitution provides that a judge shall retire from office on attaining the age of 70 years, but may elect to retire at any time after attaining the age of 65 years.
Interesting cases
In James Mwathi Nguri v Egerton University [2013] eKLR the court held that the claimant’s early retirement by the University at 54 years old was unfair in accordance with the EA and the University’s retirement policy as his workmates beyond 50 years and with the same qualifications as his were retained in the respondent’s employment. The University’s policy on retirement provided for both compulsory and early retirement for members of staff. The claimant’s case was that he was to retire upon attaining 60 years of age unless he voluntarily opted to retire upon attaining the age of 50 years but which option he did not exercise. The court found held that the University, as an employer could not retire an employee and could not therefore exercise the option which was vested in the employees.
In Jared Juma v Kenya Broadcasting Corporation & 3 Others [2014] eKLR the court held that the age limit set on the advertisement of a vacancy for the Deputy Managing Director of Kenya Broadcasting Corporation was discriminatory and was in contravention of the provisions of Article 27 (4) of the Constitution as it excluded many worthy applicants from being considered on merit to occupy the position advertised. In this case, the Board of Kenya Broadcasting Corporation had set up an age limit as one of the requirements to apply for the vacancy of the Deputy Managing Director of Kenya Broadcasting Corporation. The petitioner alleged that by arbitrarily limiting the age of the Deputy Managing Director to below the age of 45 years, the Petitioner’s right and those of other citizens were violated contrary to Article 27(4) of the Constitution.
In Suyianka Lempaa v Teachers Service Commission & another [2019] eKLR, the court held that the entry age cap set by the Teachers Service Commission for teachers was discriminatory as the commission did not have any justification for setting the entry cap at 45 years. The court held that the lower capping should be the age of 18 as that is the age of majority in Kenya. In the court’s view the capping was discriminatory on account of age and served no purpose in the circumstances. The capping locked out eligible teachers who may be willing to serve and the capping served no purpose unless justified.
In Nelson Andayi Havi v Law Society of Kenya & 3 others [2018] eKLR, the court in establishing whether all differentiational conduct amounts to discrimination held that mere discrimination, in the sense of unequal treatment or protection by the law in the absence of a legitimate reason is a most reprehensible phenomenon. But where there is a legitimate reason, then, the conduct or the law complained of cannot amount to discrimination. The Constitution prohibits unfair discrimination. But it is not every differentiation that amounts to discrimination. It is always necessary to identify the criteria that separate legitimate differentiation from constitutionally impermissible differentiation. Put differently, differentiation is permissible if it does not constitute unfair discrimination.
What enforcement/remedies exist?
The Employment and Labour Relations Court determines the appropriate remedies on a case by case basis as this is dependent on the remedies sought by the claimant in the specific case.
The Employment and Labour Relations Court is guided by the provisions of Section 49 of the EA which provides for the remedies for unfair termination or wrongful dismissal as follows:
the wages which the employee would have earned had the employee been given the period of notice to which he was entitled under the Employment Act or his contract of service;
where dismissal terminates the contract before the completion of any service upon which the employee’s wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice which the employee would have been entitled to by virtue of the contract; or
the equivalent of a number of month’s wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.
An employee may also bring proceedings in the Employment and Labour Relations Court against an employer for contravention of the provisions of the Employment Act which outlaws discrimination in employment. The Employment Act provides that a person who commits an offence under the Employment Act shall be liable to a fine not exceeding fifty thousand shillings (KES 50,000) or to imprisonment for a term not exceeding three (3) months or to both.
- The Employment and Labour Relations Court has awarded the following remedies where the Court has found that an employer engaged in unfair labour practices that resulted in discrimination:
damages for unfair termination;
a declaration that an employer’s retirement of an employee is unlawful and unfair; and
a declaration that an employer violated an employee’s right to fair labour practices as protected under Article 41 of the Constitution.