The delicate balance between an Employer’s obligation to protect the Victim and also uphold the Perpetrator’s rights – Anne Mumbi and Diana Wariara
Sexual harassment in the workplace
In the Kenyan workplace, it is very common for incidents of sexual harassment to go unreported.
Even when victims file complaints, managers and supervisors tend to brush off such claims or look the other way leaving the victim feeling helpless due to inaction on the part of management. Not only is sexual harassment a form of employment discrimination, but it is also a clear violation of the victim’s rights to freedom and discrimination as envisioned under Article 27 of the Constitution.
Sexual harassment may include conduct that comprises of verbal or non-verbal cues that are sexual in nature and are unwelcome by the receiving party for instance inappropriate touching, lewd remarks or salacious jokes.
Section 6 of the Employment Act, 2007 provides that an employee may be sexually harassed if an employer or a co-worker does either of the following:
1. directly or indirectly seeks a sexual favour in exchange for a promise of preferential treatment or threat about their present or future employment at the organization;
2. uses unwelcome language with a sexual connotation that may be written or spoken;
3. uses visual material of a sexual nature; or
4. demonstrates behavior of a sexual nature which directly or indirectly subjects the employee to behavior that is unwelcome and that by its nature is detrimental to the employee.
The Kenyan courts have found that, for a claim of sexual harassment to be valid, the employee must make it clear to the perpetrator that their actions are unwelcome and unwanted. This may be done by communicating verbally with the perpetrator or where the victim fears that they may be subjected to further discrimination, they may escalate the matter to a supervisor. It is worth noting that, unwanted conduct is not what the perpetrator, employer or court would or would not find offensive, but rather whether the individual victim made it clear that they found the conduct of the perpetrator unacceptable and unwanted. Further, prudence requires that this communication be reduced to writing, as it may be relied upon in the future.
Detailed procedures on how to handle such complaints and how to escalate them to management can be outlined in an organizations Human Resource Manual. The manual would create certainty in the organization as a victim will be sure of the procedure to follow in filing a complaint and actions that a supervisor or employer may take to resolve the matter.
Once an employer receives a complaint, an obligation falls on them to follow through the complaint.
The Employer must ensure that sexual harassment is eradicated, redressed, and does not occur again, however this must be balanced with the perpetrator’s rights. To ensure the employer remains impartial and fair, they may adopt the following five step process when looking into complaints:
1. First Hearing
Once a complaint has been filed, the employer should take time to understand the nature of the complaint and events leading up to the complaint. They may have a meeting with the victim to understand the situation at hand, during which they should take minutes of their meeting. Thereafter, the employer should notify the perpetrator of the allegations levelled against the and give them an opportunity to respond. If both parties reach an amenable cause of action at this stage, the employer may resolve the matter this stage.
2. Independent Investigations
Depending on the outcome of the hearing it may be necessary for the employer to undertake independent investigations to determine the veracity of the statements made by the victim and the perpetrator. If need be, the perpetrator may be put on suspension to give way for investigations to take place. During this period, the employer may take statements of witnesses, review company records, login records and any other relevant details to the complaint.
3. Analysis of the Evidence Collected
Once investigations have been concluded, the employer must review their findings to determine if the complaint holds merit. If need be and on a no-prejudice basis, the employer may also consider the perpetrators conduct in other cases of sexual harassment within the organization. It is important that these findings be reduced to a report.
4. Second Hearing
Once evidence has been collected and analyzed the perpetrator must be given an opportunity to review and respond to the evidence. At this stage the employer may share with the perpetrator the report and accord them an opportunity to respond in writing and in person.
If the employer is dissatisfied with the response of the finds the perpetrator and finds them culpable, appropriate sanctions should be issued. These may range from issuing a warning letter and written apology to dismissal. Throughout this process, the employer should be keen not to violate the perpetrators rights to a fair hearing.
In addition to the above, the employer should maintain confidentiality as they dispense off the complaint so as to maintain the dignity of the victim and protect them from further discrimination. However, disclosure of the victim’s identity may be necessary for the purpose of investigation or taking disciplinary measures.
Employers should be mindful of any claims by employees of sexual harassment and not seek to brush incidences under the carpet. In a recently decided case Ooko & another v SRM & 3 others (Civil Appeal 195 & 197 of 2019 (Consolidated))  KECA 44 (KLR) (Civ), an employee (SRM) was appointed by G4S Security Services (K) Ltd, where the written terms of her employment implied that the employer would not discriminate against her and would provide a conducive working environment free from sexual discrimination, exploitation and harassment. The human resource manager (Ooko) breached her right to work in an environment free from gender discrimination, sexual exploitation and harassment and made unwelcome sexual advance at her. She reported the matter to the Managing Director who directed her to drop the claim. Her employment was subsequently unlawfully terminated, and she contended that the termination of her services was actuated by malice by the management, and it was an attempt to conceal her complaints. The court found that the employer failed to investigate the sexual harassment claim expeditiously and impartially as required by the company’s internal procedures. The Court of Appeal also sanctioned the employer and the manager for a sum of K.Shs.2,964,000/= in favour of the employee.
It is important that matters of sexual harassment are well-addressed under Human Resource Policies. The Employment Act mandates that an organization with more than twenty employees must have a policy on sexual harassment. Such policies can be instrumental in defining:
a) the type of conduct amounts to sexual harassment;
b) the procedures employees available to report and escalate complaints,
c) the investigative processes that may be undertaken to examine claims; and
d) the resolution measures that maybe adopted to resolve matters in the best interests of all parties.
Organizations should therefore ensure that their employees are sensitized on their sexual harassment policy as it provides clarity and may curb instances of sexual harassment within the organization.