NAIROBI, Kenya- The Employment and Labour Relations Court has awarded a former employee of Sun Power Products Limited, trading as Brown’s Food Company, Sh1 million in general damages after finding that she was subjected to an unlawful and degrading workplace “menstrual verification” exercise that violated her constitutional rights.
In a judgment delivered by Justice Dr. Jacob Gakeri, the court held that the company was vicariously liable for the conduct of its former Human Resource Manager and Quality Assurance Officer, who compelled female employees to remove or expose their undergarments in a workplace toilet in an attempt to identify who had disposed of a sanitary pad in a dustbin.
The judge described the exercise as humiliating, degrading and unconstitutional, finding that it infringed the employee’s rights to human dignity, privacy and fair labour practices.
Employee Described Humiliating Workplace Incident
The petitioner, Caroline Wanjiku Kangethe, told the court that on July 4, 2023, she and approximately 35 other female employees were ordered to undergo the intrusive inspection after being warned that refusal could cost them their jobs.
She argued that the incident violated her constitutional rights and created a hostile work environment that later resulted in discrimination in overtime allocation and ultimately her constructive dismissal after resigning in June 2024.
Kangethe sought several declarations from the court, arguing that the employer’s conduct amounted to sexual harassment, gender-based violence, false imprisonment and unfair termination.
She also sought compensation, aggravated and exemplary damages, a written apology and orders requiring the company to strengthen workplace safeguards against sexual harassment and discrimination.
Company Accepted Incident Occurred
Brown’s Food admitted that the incident took place but argued that it had been carried out without the knowledge or approval of senior management.
The company maintained that the Human Resource Manager and Quality Assurance Officer acted independently and contrary to the company’s internal policies on privacy and sexual harassment.
According to the employer, both officers were dismissed following disciplinary proceedings, while affected employees were offered professional counselling.
The company further denied allegations of discrimination, retaliation and constructive dismissal, arguing that Kangethe voluntarily resigned to pursue other opportunities.
Court Finds Employer Liable
Justice Gakeri ruled that the forced inspection violated Articles 28, 29, 31 and 41 of the Constitution, which protect the rights to human dignity, freedom from degrading treatment, privacy and fair labour practices.
Although the conduct had not been authorised by senior management, the judge held that the employer remained legally responsible because the officers were acting within the scope of their employment and exercising authority over staff.
“The Respondent employed the two officers and gave them responsibilities over other staff and thus cannot escape liability for their nefarious acts committed in the course of their employment against fellow employees at the workplace,” Justice Gakeri ruled.
The court therefore found the company vicariously liable for the constitutional violations committed by its employees.
Some Claims Dismissed
While ruling in Kangethe’s favour on the constitutional violations, the court dismissed several other claims.
Justice Gakeri found there was insufficient evidence to support allegations that the petitioner had been discriminated against in overtime allocation or subjected to workplace victimisation.
The court also rejected her claim of constructive dismissal, noting that she continued working for nearly a year after the incident, acknowledged during cross-examination that her employment terms had not changed, and ultimately resigned through a letter expressing appreciation for the opportunities she had received.
The judge further declined to find that Kangethe had been falsely imprisoned, holding that there was no evidence the employees had been physically confined or prevented from leaving the inspection area.
Sh1 Million Awarded
The Employment and Labour Relations Court awarded Kangethe Sh1 million in general damages for the violation of her constitutional rights and ordered the employer to pay the costs of the suit.
The judgment underscores employers’ legal duty to protect workers’ dignity, privacy and fundamental rights in the workplace and affirms that companies can be held liable for unlawful acts committed by senior employees while exercising their official authority.
