Does the law protect employees from a hostile work environment?
Employers need to remember that the concept of safeguarding is expansive and critical in developing a workplace culture that results in safe spaces.
Hi Wakili,
Whenever I mention the need for debriefing to make our workspace a better environment for my colleagues, my bosses oppose the idea. Most of us are stressed, yet we cannot complain openly because we fear losing our jobs. Please help us understand what the law says?
Dear Reader,
Experts claim that 10-15% of the employed population in Kenya takes time off work, citing depression. This, on average, demonstrates that an employee who gets depressed loses at least 36 work days in their annual production calendar.
The law today provides foundational and progression pillars upon which organisations dealing with employees can establish and strengthen policies that speak to workers’ mental health. The Constitution Article 41 Clause (1) provides that every person has the right to fair labour practices, which at paragraph (b) recognises reasonable working conditions as one of those. Reading this legal provision, with Section 76 Clause (2) of the Occupational Health and Safety Act, it is stated that every employer shall take necessary steps to ensure employee that workstations, equipment, and work tasks are adapted to fit the employee’s ability including protection against mental strain. The Employment Act (2007), in Section 3 Clause 6, dictates terms and conditions of employment set out in the Act to constitute the minimum terms and conditions of employment of an employee, and any agreement to relinquish, vary, or amend the terms therein shall be null and void.
Reading the Employment Act and Occupational Health and Safety Act together, alongside the purposes outlined in the Mental Health (Amendment) Act of 2022, creates the urgency to develop and ring-fence a workplace culture informed and influenced by a consistent commitment to integrating mental health and employee safety.
The Mental Health (Amendment) Act of 2022 has seven purposes stated in Section 4 Clause 2A, which offers the following: a) It is to promote the mental health and well-being of all persons, including reducing the incidences of mental illness; (b) co-ordinate the prevention of mental illness, access to mental health care, treatment and rehabilitation services of persons with mental illness: (c) reduce the impact of mental illness, including the effects of stigma on individuals, family, and the community: (d) promote recovery from mental illness and enhance rehabilitation and integration of person with mental illness into the community: (e) ensure that the rights of a person with mental illness is protected and safeguarded: (f) adopt a holistic approach to community-based mental health services: and (g) promote the provision of mental health services in primary health facilities.
In 2022, a former South African employee of Sama, an outsourcing firm for Meta, Daniel Motaung, filed a petition in Kenya’s Employment and Labour Relations Court against Sama and Facebook, claiming, among other things, poor working conditions and a lack of mental health support.
On interim orders, Justice Byrum Ongaya instructed Meta to provide medical, psychiatric, and psychological care to a group of Nairobi moderators, owing to the harrowing testimony regarding the distressing nature of their work.
Employers need to remember that the concept of safeguarding is expansive and critical in developing a workplace culture that results in establishing employees’ safe spaces as part of the infrastructure to deliver their contractual assignments.
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