P.O. v. Board of Trustees, A.F., et al.

The claimant accompanied one of respondents, a co-worker “J.”, on a work-related trip. Throughout the business trip, J. made sexual innuendos towards the claimant and when his advances failed, he physically beat her. He booked a single hotel room, while the claimant believed she would have her own room. As a result, the claimant was forced to sleep on the floor and returned to Kenya two days later, while J. continued to the conference. Upon the claimant’s return, she received multiple threatening emails from J. and her employment was terminated as of May 24, 2010 for alleged “misconduct” for not travelling to the conference. Her salary for May was unpaid. Although there were numerous legal issues decided in this case, including jurisdiction, the key issue was whether the claimant was subjected to gender-based discrimination and thus unlawfully terminated, and what, if any, entitlement is due to her. The Industrial Court determined that J.’s conduct toward the claimant, no matter where it had occurred, clearly amounted to gender-based violence against an employee, and that his conduct “had the effect of nullifying or impairing the equality of opportunity or treatment in employment, based on her sex.” The Industrial Court awarded P total compensation of Kshs 3,240,000, which included general damages for sexual harassment, and unfair and wrongful termination of Kshs 3,000,000. This case is important to demonstrate Kenyan courts afford protection against sexual violence in multiple ways, including equal opportunity and human rights legislation, labor legislation, civil remedies and criminal law. In addition to Kenyan employment law, the Industrial Court also relied on the 1993 UN Declaration on the Elimination of Violence against Women, the International Labour Organization, as well as other forms of jurisprudence to support eradicating violence and sexual discrimination against women in the workplace. The decision noted that while the Constitution of Kenya was not yet in effect and thus not directly applicable when the case was tried, Articles 1, 3 and 5 of the 1948 UN Universal Declaration of Human Rights were included in the Kenyan Constitution and thus were applicable at the time the case occurred.