The right to fair labour practises is a fundamental guarantee given by the constitution of Kenya. The law upholds the rights and freedoms of every individual. The law also guarantees the right to freedom and security of the person, the right to human dignity and freedom from discrimination.
When we look at the protections provided in the workplace for cases of sexual harassment, court proceedings can be initiated vindicating that any of the above rights have been denied, violated, infringed or threatened.
The constitutional safeguard has also developed the Sexual Offences Act. According to the act:
“A person may be found guilty of sexual harassment if any person, who being in a position of authority, or holding a public office, persistently makes any sexual advances or requests which he or she knows, or has reasonable grounds to know, are unwelcome.”
The penalty of the offence is imprisonment for a term of not less than 3 years or a fine of not less than KES 100,000 (~USD 1,000) or both.
In accordance with the Sexual Offences Act of 2006, any person, who is in a position of authority, or a person holding a public office, who persistently makes any sexual advances or requests which he or she knows, or has reasonable grounds to know, are unwelcome, is guilty of the offence of sexual harassment and is liable to imprisonment of at least three years or to a fine of at least 100,000 shillings or to both.
The lawmakers have provided robust protections under the Employment Act.
Section 6 of the Employment Act defines sexual harassment as where an employer or a representative of the employer or a co-worker:
- Directly or indirectly requests an employee for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express (i) promise of preferential treatment in employment; (ii) threat of detrimental treatment in employment; or (iii) threat about the present or future employment status of the employee.
- Uses language whether written or spoken of a sexual nature.
- Uses visual material of a sexual nature; or
- Shows physical behaviour of a sexual nature which directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee and that by its nature has a detrimental effect on that employee’s employment, job performance, or job satisfaction.
The Employment Act requires that an employer with twenty or more employees constructs a policy on sexual harassment. The policy should clearly define sexual harassment and state that the workplace is free of sexual harassment. The employer must take measures to ensure that workers are not subjected to sexual harassment and take appropriate disciplinary actions against the person involved in sexual harassment. They must also ensure the implementation of the policy. Employers are required to train their employees on the parameters of the policy.
The act states that a description of the procedure through which worker may bring the complaints of sexual harassment to the attention of the employer should be mentioned in the policy. All information pertaining to the sexual harassment case has to be confidential except where disclosure is necessary for the purpose of investigation or taking disciplinary measures.