Love at Work: Unpacking the Legal Dynamics of Fraternization in Kenyan Workplaces

Researched and compiled by Wesley K'Ogangah , Associate.

Fraternization, or romantic relationships between employees, has long been a sensitive issue in workplace management globally. For many employers, balancing the need for a professional environment with respect for employees’ personal freedoms can be challenging. In Kenya, the legal landscape surrounding workplace relationships has evolved through various court decisions, balancing the rights of employees and employers. Historically, Kenyan courts have grappled with cases involving workplace relationships, primarily when such relationships allegedly lead to favouritism, conflicts of interest, or disruptions in the work environment affecting general productivity. However, the recent jurisprudence, particularly the case of?MNM v G4S Kenya Limited (Cause E232 of 2021) [2024] KEELRC 2248 (KLR) (Judgment), has reshaped the conversation on this issue.

Historical Context

Previously, Kenyan employers had significant leeway in regulating romantic relationships among employees, often citing concerns about professionalism, conflicts of interest, or workplace productivity. Employers would sometimes enact strict anti-fraternization policies, and disciplinary actions, including termination, were common when such relationships were disclosed. Most court decisions on workplace relationships have primarily focused on cases of sexual harassment, which falls under Section 6 of the Employment Act. However, a few court cases have addressed fraternization or romantic relationships between employees and the jurisprudence emerging from the courts presents two perspectives.

In the case of?Ooga v Thomas Barnado House (Employment and Labour Relations Cause 693 of 2017) [2023] KEELRC 706 (KLR) (20 March 2023) (Judgment), despite finding that the claimant’s termination was procedurally flawed, the court upheld that the employer had valid grounds for dismissing the employee due to intimate relationships with junior staff, which violated the employer’s Code of Conduct.

In addition, in the case of?Kinuu & another v Text Book Centre Limited (Employment and Labour Relations Cause E189 of 2021) [2024] KEELRC 1056 (KLR) (9 May 2024)?(Judgment) the court held that the employer had no valid reason to constructively dismiss the claimants from employment because of engaging in romantic and/or sexual relationship.

Further, in the case of?Cheboron v Kenya Power & Lighting Co. Ltd (Cause E004?of?2021) [2022]?KEELRC?1619?(KLR) (20?May?2022) (Judgment)?the court in finding that the dismissal of an employee who admitted to a romantic relationship with a colleague who had sent her money was unfair, criticized the employer for intruding into the employee’s private life regarding the alleged workplace relationship.

Finally, in the case of?Wanyoike & another v Mentor Sacco Society Limited (Employment and Labour Relations Cause E002?&?E003?of?2023 (Consolidated)) [2023]?KEELRC?3353?(KLR) (19?December?2023) (Judgment),?despite finding that the dismissal of two employees who were a couple was unlawful, the court among other reasons denied the employees the prayer for reinstatement due to a clause within the employer’s HR Manual that discouraged romantic relationships between employees and recommended that where two employees mutually agree to be married, one had to resign to avoid conflict of interest.

The MNM v G4S Kenya Limited Case

In this landmark case, the Employment and Labour Relations Court acknowledged that employers may have legitimate concerns about workplace romances, including fears of sexual harassment claims, conflicts of interest—particularly in relationships between managers and subordinates—reduced productivity due to friction between partners, and the potential loss of trained employees if a rejected partner chooses to resign.

However, the court emphasized that employers should not interfere with romantic relationships between consenting adult employees unless such relationships negatively impact job performance, create conflicts of interest, or violate company policies in ways that harm the organization.

This decision arose from a case where G4S Kenya Limited dismissed an employee for engaging in a romantic relationship with a colleague, allegedly in violation of the employer’s Sexual Harassment Policy. The court found that the employer failed to prove the allegation of sexual harassment against the employee. It criticized the employer for not distinguishing between sexual harassment and consensual romantic relationships in the workplace, noting that not all workplace relationships result in sexual harassment.

Guided by the decision made in US Supreme Court in?Lawrence v. Texas [539 U.S. 558 and California Court of Appeal decision in Barbee v. Household Automotive Finance Corporation, [113 Cal. App. 4th?525?the court declared the employer’s Sexual Harassment Policy prohibiting sexual or romantic relationships in the workplace unconstitutional. It held that such a policy infringes on employees’ rights to privacy and dignity and violates their fundamental freedom from cruel, inhuman, or degrading treatment, as protected under Articles 25(a), 28 and 31 of the Constitution of Kenya, 2010.

The judgment emphasized the importance of employees’ right to privacy, affirming that while employers can establish workplace codes of conduct, these should not infringe on personal freedoms unless the relationship leads to clear misconduct or negatively impacts the workplace.

The court further emphasized that while employers may have legitimate interests in regulating workplace conduct, romantic relationships alone do not justify disciplinary action unless they lead to improper behavior or have a direct negative impact on the work environment.

Implications of the Judgment

The?MNM v G4S decision is a significant shift in how workplace relationships are regulated in Kenya. The judgment affirms that consensual romantic relationships between employees do not, in themselves, constitute a valid reason for dismissal. This case underscores the need for employers to focus on the professional conduct of employees rather than their personal relationship and deviates from the normal practice and policies at most places of work.

Key Takeaways for Employers

Global statistics indicate that romantic relationships in the workplace are increasingly common and have become a natural part of daily interactions. Many employees have dated or even married their colleagues, while others have occasionally shared romantic moments at work. Additionally, modern attitudes toward relationships and sexual autonomy have made the workplace a setting where extramarital affairs can also occur. However, the dynamics of office romance are distinct from those of typical relationships, often requiring adherence to workplace-specific norms and policies.

How can an employer effectively manage workplace romantic relationships, whether vertical (between a subordinate and a supervisor) or lateral (among colleagues), while balancing the organization’s need to maintain order, professionalism, and a respectful work environment with employees’ rights to privacy and autonomy?

1. Review Workplace Policies on Fraternization-?Fraternization policies should be carefully designed to address legitimate concerns such as conflicts of interest, harassment, coercion, or favouritism. However, imposing blanket bans or severe penalties for consensual relationships may be seen as an infringement on employees’ personal rights. Instead, policies can include provisions requiring the disclosure of relationships that may pose a conflict of interest while avoiding outright prohibitions on workplace romance.
2. Focus on Conduct, Not Relationships-?The court clarified that a romantic relationship alone does not constitute sufficient grounds for dismissal or disciplinary action. Employers should instead assess whether the relationship has a tangible impact on the workplace, such as favouritism, reduced job performance, conflicts of interest, or inappropriate behaviour during work hours. If such issues occur, they should be addressed impartially, focusing on the behaviour and its effects rather than the romantic nature of the relationship.
3. Respect for Employee Privacy-The judgment reinforces that employees have a right to privacy in their personal relationships. Employers must be cautious about crossing into employees’ private lives, especially where there is no direct impact on workplace efficiency or behaviour. While workplace policies should promote professionalism, they should not unduly regulate personal decisions unless the relationship creates a clear conflict of interest or other legitimate business concerns.
4. Clear Communication and Policy Implementation-?It is essential for employers to clearly communicate their expectations and apply policies consistently. This includes providing training to staff on how to navigate workplace relationships and understand the professional boundaries that should be maintained. Establishing clear procedures for managing complaints or conflicts arising from workplace relationships will also help mitigate risks and ensure a fair and respectful work environment.
5. Investigate Complaints Thoroughly-?If allegations of favouritism, harassment, or misconduct arise due to a workplace relationship, employers must investigate thoroughly and impartially. Rushing to terminate employees without conducting fair investigations can expose employers to legal liabilities, as shown in the G4S case where the employee was terminated for sexual harassment which turned out to be an issue of consensual sexual relationship. It is critical for employers to distinguish between harassment and consensual fraternization to avoid confusion.

Conclusion

The evolving jurisprudence in Kenya, especially following the?MNM v G4S?Kenya Limited case, highlights a growing recognition of employees’ right to privacy and autonomy in workplace relationships. Given the differing views from the Employment and Labour Relations Court, it may be important for higher courts to provide further clarity on this matter.

Employers must carefully balance their legitimate business interests with employees’ rights and exercise caution when regulating romantic relationships at work. Policies that impose blanket bans or excessive monitoring of such relationships may be deemed invasive and unconstitutional, as the court has ruled. However, by implementing well-considered policies and enforcing them consistently, employers can avoid legal challenges while maintaining a professional and respectful work environment.

Disclaimer: This publication is not intended to constitute legal advice, which can only be given having regard to particular facts and circumstances. Any liability that would or could arise from or of its contents is hereby excluded. Always seek professional advice from a suitably qualified lawyer on any specific legal problem or matter.