Is it illegal for married couples to work in the same company?

Hi Eric. Why do companies refuse to hire spouses?

I thought after Citizen TV hired Lulu and Hassan, the outdated practice of not hiring couples would be kicked out of HR policies.

Turns out I am wrong because my husband said I cannot apply for a vacancy at his company as it is against HR policy.

Dear Mum,

The column commences this conversation by paying tribute to the relevance of the World’s Zero Discrimination Day, celebrated on the 1 of every March.

This is important since it is the resolve of the world’s Nations to enact laws and policies, besides tolerating and entrenching practices that do not entertain, propagate nor sustain discrimination in any and every form.

It should be understood that the institution of marriage, irrespective of the religious or cultural connotations and commands, even with instructive holy scriptures such as that found in the book of Genesis Chapter two verse 24, does not decapitate the rights of individuality.

There is nowhere in law, even in religion that two persons are judged as one. If several people commit an offense together, criminal law systems attend to their criminality on purpose and with the intent to identify and prosecute the role played by each person. Individuality remains the sacred premise upon which law is derived and applied.

The Kenyan constitution at Article 27 (1) states that every person is equal before the law and has the right to equal protection and equal benefit of the law. The Constitution refers to and encompasses every law, local, regional and international applicable in Kenya, including the Employment Act of 2007.

Further at Sub-Article 2, it qualifies equality as that which includes the full and equal enjoyment of all rights and fundamental freedoms. Therefore, the practice within any company, organisation or institution, even if it forms a fundamental clause in their human resource management policies, including homes that discriminate anybody from employment on the basis of any ground, is in violation of Article 27, especially sub-Article 4, under which the state must not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

Given this list not being conclusive, it offers a wider interpretation and expansion to include all forms and reasons that exacerbate discrimination. This is envisaged Sub-Article 5 of Article 27, where it directs no person to discriminate against another directly or indirectly on the strength of any of the grounds specified or contemplated in clause (4).

Sustain standards

Employment Act, as an enabling law was enacted to create and sustain standards in human resource management practices, across and among sectors. It provides rights and duties for both employers and employees.

Its functional relevance is motivated by Article 41 of the Constitution which in principle and deed addresses itself to the need for labour sanity and dignity. Specifically, Sub-Article 1, states that every person has the right to fair labour practices.

The Act at Section 5 (1-a) obligates the labour offices, the Cabinet Secretary (state) and the industrial court (now employment and labour relations court) to promote equality of opportunity in employment in order to eliminate discrimination within it.

Section 5 (2), in creating inclusiveness, states that an employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice. Sub-Section 3 (a) prohibits every employer from directly or indirectly discriminating against an employee or prospective employee or harassing an employee or prospective employee on grounds of race, colour, sex, language, religion, political or other opinions, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status; in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment.

Any company policy on and for human resources management that denies a person access to employment, offends Article 41 of the Constitution, besides laying mockery on Article 27 regarding equality before the law.

As our readers wake up to blissful memories created by the Valentine's Day celebrations of the 14th of February, let it be in public space that employers can employ married couples, since employment in any given institution, it is assumed, is based on merit, competency and skill.

Being a wife or husband, and working in the same place does not dwarf or enhance a person’s qualifications and ability to perform. Professionalism should always stand out as the motivational pillar for both employers and employees. 

Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]