AN EXPOSITION OF THE ELRC'S DECISION IN MARK NGUGI MWAURA VS G4S KENYA LIMITED - ELRC 232 OF 2021

The ELRC recently solidified the position of consensual workplace romances in the Mark Ngugi Mwaura vs G4s Kenya Limited. The case brought to light one of the most contentious issues in employment, workplace romance. Our write-up below offers a comprehensive review of the case and highlight the key insights gained.

Brief Facts

Mwaura was dismissed on the 22nd of December, 2022 after over 20 years of service at G4S Kenya Limited. The ground for dismissal was his alleged sexual relationship with one Anne Mukami, his subordinate. It was further alleged that their relationship resulted in her receiving preferential treatment, including a transfer to a better-paying position at Coca Cola Upper-Hill. These allegations were seconded by Mukami who claimed that Mwaura not only facilitated her transfer, but also fathered her child. A DNA test was done which disproved her claims which led to Mukami being dismissed for giving false information to the court.

Mwaura was accused by the employer for breaching their Sexual Harassment Policy by engaging in a romantic relationship with a subordinate which necessitated his termination. G4S further claimed that due process was followed and the termination was reasonable since the relationship between the two constituted a conflict of interest and sexual harassment.

On the other hand, Mwaura denied having a role in Mukami’s transfer and asserted that it was handled by her direct manager.

The Ruling

The court ruled the dismissal to be unfair and unlawful based on the following:

i. The evidence provided before the court proved the existence of a consensual relationship between Mwaura and Mukami and not sexual harassment. The court emphasized that for sexual harassment to be proved, evidence must be adduced depicting coercion or a hostile work environment.

ii. G4S failed to prove misconduct as there was no evidence suggesting that the relationship between the two employees was not consensual.

iii. The court was convinced by the evidence adduced which showed that Mukami’s transfer was handled by her Customer Service Manager and was due to her competence rather than any influence by Mwaura.

iv. The court declared the Sexual Harassment Policy unconstitutional to the extent that it prohibited consensual romantic relationships between supervisors and subordinates. The court noted that it violated the employee’s right to privacy and dignity. It appreciated the fact that relationships in the workplace are inevitable and should not automatically be grounds for termination unless there is clear evidence of conflict of interest or misconduct.

In light of this, Mwaura received compensation for unfair termination equivalent to 12 months’ salary in the sum of Kshs. 3,244,800. G4S was also mandated to issue him with a Certificate of Service.

Employers are now tasked with ensuring that workplace policies do not undermine or violate employee rights as provided for under law. Further, such policies that unreasonably limit employee rights are not legally defendable and create unnecessary risk for the employer.

At JMK Partners Advocates LLP, we work hand in hand with employers and employees to ensure that they understand their rights and obligations under law and what recourse is available to them in case of breach. Additionally, we draft, review and negotiate watertight and legally sound employment contracts and policies in avoidance of any future conflicts.

Authored by: Jilian Nekoye (Associate Advocate)

For more information contact: [email protected]