You Can Challenge Unfair Recruitment Practices!

A court in Kenya awarded Kshs 6 million in damages to a visually impaired individual, who filed a constitutional petition alleging discrimination after he was denied employment. In Macharia v Safaricom PLC [2021]?KEHC?462?(KLR), the High Court held that candidates in an employment selection process have a constitutional right to fair administrative action and to be treated with dignity and respect. ?The employer in this case led the candidate through a misleading recruitment process, revoked an offer, and failed to provide justifiable reasons, violating his dignity.

You have probably heard or even?experienced?cases where job seekers?suffer humiliation from prospective employers?who?turn recruitment into a power play?to?embarrass, mock, ridicule,, or exploit applicants.

Yet, many job seekers assume that only employees are protected by law. That until you sign a contract, you have no rights. But this is false. If an employer misleads you, wastes your time, causes you financial loss, or treats you unfairly during recruitment, you may have grounds to demand compensation. A colleague of mine calls it “having the one who caused you to shed tears wipe them for you.”

?? Common Unfair Recruitment Scenarios & Legal Implications

As I reflect on the judgment in Macharia v. Safaricom, I think about some of the most common unfair recruitment scenarios and their legal consequences.

1?. Extended Selection Process That Mimics Employment

Scenario: An employer places candidates in a prolonged unpaid selection process that lasts for weeks or even months. Candidates perform actual work under the assumption that they are being assessed for a job, only to later be dismissed without compensation.

?Legal Basis

• Breach of reasonable expectation – If the employer created a reasonable belief that the process would lead to employment, the abrupt dismissal can be challenged.
• Unjust enrichment – The employer benefited from your labour without pay.
• Violation of dignity (Article 28 of the Constitution) – Subjecting candidates to a fake employment process for free labour can be deemed exploitative.

?2?. Fake Hiring or “Pipeline Recruitment”

Scenario: A company advertises jobs, interviews and even gives verbal or written offers, only to later claim they were not actively hiring—they were just “building a talent pool” for future vacancies.

Legal Basis

• Breach of fair administrative action. Employers cannot mislead candidates about hiring decisions.
• Negligent misrepresentation – If you relocated, resigned from another job, or took financial steps based on the offer, you may have a valid claim.

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3?. The Disappearing Job Offer

Scenario: You pass multiple interview stages, medical tests, and background checks, and even receive a formal offer letter, but before reporting, the employer withdraws it without a valid reason.

?Legal Basis

• Breach of reasonable expectation – If a clear commitment was made, the employer must justify withdrawal.
• Unfair administrative action – The employer must act reasonably and give written reasons for revoking the offer.

Case Example: In Macharia v. Safaricom, the employer misled a candidate through the hiring process, and then revoked the offer. The court held that misleading recruitment violated his dignity and fair administrative action, awarding Kshs 6 million in damages.

4?. Employer Requires You to Pay for Your Own Hiring Process

Scenario: Some employers require candidates to pay for medical tests, training, or certifications before confirming employment, only to later reject them. In some cases, employers outsource the recruitment to third-party firms that charge candidates application or training fees.

Legal Basis

• Unfair labor practices – Employers must bear the cost of recruitment unless explicitly agreed otherwise.
• Consumer Protection Laws – If a company charges for job placement services, it may be engaging in fraudulent practices.

You can demand reimbursement and report the company for fraudulent labor practices.

5?. Training Without Employment Commitment

Scenario: A company offers candidates unpaid training with an implied promise of employment, but after the training, only a small fraction are hired, and the rest are dismissed without reasonable basis or with no reasons at all.

Legal Basis

• Breach of reasonable expectation – If the training was positioned as a direct path to employment, withdrawing the offer without valid reasons can be legally challenged.
• Unjust enrichment – If the company benefited from your labor without pay or benefits, it can be held liable.

6?. Employer Changes Job Terms After You Accept the Offer

Scenario: You accept a job offer with an agreed salary and benefits, but on your first day, the employer introduces different terms, such as a Lower salary than agreed., Longer working hours, Different job responsibilities, etc.

Legal Basis

• Breach of contract – Even verbal job offers can be binding agreements.
• Constructive dismissal – If the changes fundamentally alter the job, you may be entitled to compensation for breach of contract.

You can demand enforcement of the original terms or compensation for misleading employment practices.

7?. Employer Ignores Disability Accommodation Needs After Hiring

Scenario: You disclose a disability during the hiring process, and the employer assures you that accommodations will be made. However, once hired, the employer fails to implement any reasonable adjustments, making it impossible for you to work.

Legal Basis

• Persons with Disabilities Act read with Article 54(1) of the Constitution of Kenya – Employers must provide reasonable accommodations for employees with disabilities.
• Unfair administrative action– Employers must follow through on commitments made during hiring.

I am sure the list of scenarios I have described is not exhaustive. If you have experienced or witnessed other unfair recruitment practices, I’d love to hear from you! Share your experiences or additional scenarios with me here or send them to [email protected]. You can reach out to me using the same channels if you have any questions. ??

?? Key Takeaways

? Recruitment must be honest, fair, and transparent.

? Employers cannot mislead, exploit, or unfairly disqualify candidates.

? If you suffer financial loss, lost career opportunities, or emotional harm, you can seek legal redress.

? NOTE that every case is judged on its unique facts and merits. There is no one-size-fits-all approach.

Your time, effort, and dignity matter even as you seek job opportunities. If you experience unfair, illegal, ridiculous recruitment practices, you have legal rights. Don’t hesitate to enforce them.

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??? Stay Bold. Stay Informed.

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