Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes with satisfaction the adoption of the new Employment Act 2007 which covers both the private and public sectors. The Act prohibits direct and indirect discrimination and harassment against an employee or a prospective employee on grounds of “race, colour, sex, language, religion, political or other opinion, nationality or ethnic or social origin, disability, pregnancy, mental status or HIV status” (section 5(3)(a)), in respect of recruitment, training, promotions, terms and conditions of employment, termination of employment or other matters arising out of the employment (section 5(3)(b)), and requires employers to pay equal remuneration for work of equal value (section 5(4)). Under the Act, the Minister, labour officers and the industrial court have a duty to promote equality of opportunity in employment in order to eliminate discrimination, as well as to promote and guarantee equality of opportunity for a person who is a migrant worker or a member of his or her family, lawfully in Kenya (section 5(1)(a) and (b)). Employers, including employment agencies, shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice (section 5(2) and (7)). “Employment policy or practice” is broadly defined by section 5(7)(c) of the Act and covers all aspects of employment.  Furthermore, the Act prohibit sexual harassment by the employer, employers’ representatives, as well as co-workers (section 6). The definition of sexual harassment includes quid pro quo and hostile environment, and requires employers of more than 20 employees to adopt and implement a policy statement on sexual harassment (sections 6(1) and (2)). Finally, section 5(6) provides for the shifting of the burden of proof to the employer in the case of an alleged discrimination based on section 5. The Committee welcomes the provisions concerning non-discrimination and equality in the Employment Act 2007, and requests the Government to provide information on their practical application.

The Committee is raising other points in a request addressed directly to the Government.