Court strikes blow for’ equal pay for equal work’

It is unlawful for employers to pay an employee less than their counterparts in similar positions, the Employment and Labour Relations Court has ruled.

In a landmark judgment that entrenches the ‘equal pay for equal work’ principle in the country, the court stated that having workers doing the same job while earning different pay amounts to discrimination, which is a breach of Kenyan employment laws.

Justice Stella Rutto said employers are duty-bound to promote equal opportunity in employment and eliminate discrimination in any employment policy or practice.

This followed an employment dispute between Tom Oduor and Dawa Life Sciences Limited over pay discrimination.

The judge awarded Mr Oduor Sh2 million compensation for breach of his right to equality by the employer.

She stated that the company failed to provide proof that the claimant had not been discriminated against.

Mr Oduor was a senior manager at the pharmaceutical company, earning less than his peers serving in the same position.

He argued that despite his promotion to a management position in February 2016, the company failed to review his salary of Sh180,554 to match that of his peers until September 2020, when it was increased to Sh350,000.

Mr Oduor raised the issue of discrimination after earning less than the starting salary for his new position.

He was dismissed in January 2022 on account of redundancy following a period of financial losses in the previous year, prompting his court petition over unequal pay.

Justice Rutto found that Mr Oduor’s underpayment was acknowledged by top officials of the company -- Pedro Filipe and another identified as Mr Rushabh -- in an email communication.

“Before September 2020, the claimant was the lowest-paid senior manager in the team under which he was serving,” said the judge.

“This position was confirmed by Mr Rushabh to Mr Pedro Filipe in his email dated September 18, 2020, in which he stated that the claimant was the lowest-paid senior manager in all his teams. He further added that the average salary was sitting at Sh350,000. Indeed, it was after Mr Rushabh’s email that the claimant’s salary was increased to Sh350,000.”

The company in defence reckoned that Mr Oduor accepted the terms of his employment.

It further stated that the negotiation of a contract was done individually, and salary awarded in accordance with individual value additions, qualifications, experience and responsibilities.

But the court rejected the argument, arguing that any form of discrimination in the workplace is outlawed.

Citing Section 5(2) of the Employment Act, Justice Rutto said an employer is duty-bound to promote equal opportunity at work and strive to eliminate discrimination in any employment policy or practice.

“Therefore, in as much as the claimant may have accepted contractual terms that were less favourable compared to his counterparts, there was a statutory duty on the part of the employer to ensure fairness across the board and to strive to eliminate any discriminatory policy or practice in the workplace,” she said.

“By dint of Section 5(7) of the Employment Act, the employer bears the burden of proving the fact that the discrimination did not take place as alleged and that the discriminatory act is not based on any of the grounds specified within that section.”

The court ruled in favour of Mr Oduor by declaring that the termination from employment was unfair and unlawful.

He was awarded a total of Sh3.8 million on various heads, including Sh1.4 million damages for unfair termination, Sh477,166 for unpaid leave days and Sh2 million for breach of his right to equality and freedom from discrimination.

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