I've been fired for dating an office colleague; is this legal?
The court has ruled that prohibiting romantic relationships in the workplace is an invasion of employees' privacy
What you need to know:
- The court ruled that prohibiting such relationships is an invasion of employees' privacy.
- Romantic relationships, as long as they do not interfere with work performance or create a conflict of interest, should not be policed by employers.
Dear Vivian,
I have been working at a telecommunications company for the past three years. During my time there, I had a consensual romantic relationship with a colleague. Recently, the company discovered our relationship, and I was summoned by HR and informed that I had breached the company policy prohibiting romantic relationships in the workplace. As a result, I was dismissed, while my colleague faced only lighter disciplinary action. I feel this was unfair and discriminatory. Is it legal for my employer to terminate my employment on these grounds?
Gladys Wahome, Nairobi
Dear Gladys,
First, the prohibition of romantic relationships in the workplace, as stipulated in many company policies, has been deemed unconstitutional by the Employment and Labour Relations Court. Article 31 of the Constitution guarantees every person the right to privacy, which extends to consensual romantic relationships between adults.
In one instance, the court ruled that prohibiting such relationships is an invasion of employees' privacy. Romantic relationships, as long as they do not interfere with work performance or create a conflict of interest, should not be policed by employers. The court emphasised that matters of the heart are private and should not be unnecessarily regulated by corporate policies.
That clause in the company’s policy, which bars romantic relationships in the workplace between employees, is likely unconstitutional. The court observed that such policies infringe employees’ inherent dignity and their freedom to engage in private romantic relationships. It was noted that while workplace romance could potentially raise concerns about conflicts of interest, these issues should be addressed directly if they arise, rather than imposing a blanket prohibition on relationships.
In your case, if there was no actual conflict of interest, then your dismissal likely violated your constitutional rights. The court has ruled that employers have no valid justification for terminating an employee’s contract based solely on a consensual relationship, as this interferes with employees' right to choose their personal relationships.
Finally, based on the constitutional protections provided by law and the precedent set by the labour court, it appears that your dismissal for engaging in a consensual workplace relationship may not be legally defensible. You may have grounds to challenge the decision on the basis of unfair dismissal, violation of your privacy rights, and gender-based discrimination. It would be advisable to consult a legal professional to further explore your options for redress, including filing a claim for unfair dismissal and discrimination under the Employment Act and the Constitution. You could potentially seek remedies such as compensation for unfair termination and reinstatement, if appropriate.
Vivian
The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).
