Equal Pay for Equal Value

Discrimination has no place in the workplace. The price is too high KCB bank was ordered to pay Kshs. 113 Million to employees due to discrimination and unequal treatment meted upon its former employees.

Employers are tasked to ensure that there is equality in the workplace. This is guaranteed by the Constitution of Kenya and the Employment Act. Employers have a responsibility to ensure that their employees enjoy similar benefits and remuneration with respect to the category that they are engaged in.

KCB Bank engaged the services of Clerks. One group was engaged on permanent and pensionable terms and had entered into a Collective Bargaining Agreement while the second group was on fixed-term contracts.

The 2 groups were all issued with the same job description specifying a similar set of skills, experience and ability to dispense with the responsibilities that came with the job. Further, they were all evaluated with a similar Balanced Scorecard.

The contract-based employees alleged that they were discriminated on various aspects. They indicated that they were subjected to use of separate and inconvenient vaccination stations for contract-based clerks during the COVID-19 pandemic, permanently employed clerks enjoyed benefits such as house allowance, leave allowance, bonuses, working from home options during the pandemic, higher overtime rates among other perks while the contract based employees were denied all these benefits despite performing the same duties as envisaged under the job description.

Lady Justice Monica Mbaru in the case of Omondi Justus Ran’gan’ga and 28 others Vs Kenya Commercial Bank established that it is an employer’s responsibility to disclose to an employee in the contract of employment the provisions of any CBA directly affecting the terms and conditions of employment as per the provisions of the Employment Act.

The court determined that the application of the CBA terms only on permanent clerks amounted to discrimination and unfair treatment of the contract-based clerks contrary to Article 27 of the Constitution of Kenya.

The Claimants executed the same tasks as their counterparts by virtue of their job descriptions and were found to have been unionisable and subject to the provisions of the CBA. The respondent thus was bound by section 26 of the Employment Act 2007 to apply terms and conditions under the CBA to the Claimants.

This determination in effect implies that the legal duty to disclose an existing CBA in the contract of employment vests on the employer. When an employer fails to disclose the existence of a CBA to an employee regarding an existing CBA, this amounts to a misrepresentation of facts and fraud and ultimately invalidates the employment contract.

Employers must ensure that the terms and conditions of their existing CBAs are effectively applied against their employees’ employment contracts with regard to the job description and category.

An employer should be keen to routinely review their CBAs, contracts of employment and Policies that are not discriminatory.

Be further advised that we shall not be held liable in the event you rely on the information herein without a further in-depth consultation based on your unique circumstances as the same is a general guideline. Our team at Wachira Wanjiru & Company Advocates continues to be available for any consultations that you may require concerning arising legal issues. Contact us at info@wachirawanjiru.co.ke or +254720790133 for your needs.