When do Romantic Pursuits amount to Sexual Harassment in the workplace?
James WaNjeri - Employment and Labour Lawyer
Human beings have dynamic relationships. At the center of it all are emotions, behaviours, and communication patterns that affect how they relate. While the workplace has long been held to be a professional space where personal matters should not be present, the reality is that many romantic relationships have developed in the workplace. Employers have often found themselves at a crossroads on how to deal with such relationships. While banning any form of romantic liaison is the preferred route, it is also unrealistic as employees can easily hide the relationship. Nevertheless, employers have a duty to create a safe working environment for their staff. So what happens when an employee aggressively pursues a fellow workmate, seeking to build an intimate relationship with them? That question is part of what the Court in M.W.G v Safaricom Limited Employment Cause 2122 of 2017 [2023] KEELRC 2684 (KLR) had to answer. (Due to the nature of the case, we have redacted the full names of the parties and witnesses in this case to protect their identities)
G, who was the Claimant Employee in this case stated that she suffers from repetitive bouts of depression which is a condition the Respondent Employer was aware of. She was suspended from duty through a notice dated 7th October 2017 and subsequently subjected to a disciplinary hearing. Thereafter, she was terminated from employment on allegations of sexual harassment. According to her, she was unfairly targeted because of her sexual orientation and denied harassing her female colleagues as alleged.
The events leading up to the termination are that on 12th September 2016, she was engaged in a one-on-one coaching session with Rebecca and was then suspended from duty by the Employer through a Notice of Suspension from Duty dated 7th October 2016 effective the same date. The Notice indicated the grounds for the suspension to be allegations of sexual misconduct/harassment against colleagues and insubordination against her line manager.
On 7th October 2016, she received a Notification for a Disciplinary Hearing. The hearing proceeded on 11th October 2016. According to her, the disciplinary hearing was unfair and biased as substantial information was kept from her and she only found out about her accuser at the hearing and therefore did not have sufficient time to prepare her defence. Furthermore, the Ethics and Compliance team did not take into account any of the information she provided and was majorly on the side of her accuser. Her employment was terminated through a Notice of Summary Dismissal dated 4th November 2016. The grounds for her dismissal were sexual harassment allegations.
So was there sexual harassment?
According to the employee, the interactions between her and her female colleague Esther, who accused her of sexual harassment were fully consensual. The employer stated that the disciplinary hearing was informed by investigations of the Ethics and Compliance team relating to sexual harassment allegations lodged against her by a female colleague at the Customer Care Operations Department. In the course of the investigations, the team interviewed the Employee and some of her colleagues (Esther, Joyce, Micah, Reuben, and Jessica) who recorded statements about the issue. The statements and report were produced in Court by the Employer in support of its case.
Harassment of Joyce
On her part, Joyce stated that when she met the Claimant during a team-building event, she (Claimant) informed her that she wanted to be more than friends. Joyce told her that she was not interested in her. Nevertheless, the Claimant kept following her around that night even after she told her that she was not interested in her. Joyce further stated that in another team-building event, the Claimant approached her again while she was very drunk (on both alcohol and cannabis sativa). She told Joyce that she still likes her even if she doesn’t like her. That things will not change. The Claimant kept putting her hands on Joyce’s shoulder and she would remove them. The Claimant would follow her around and try to dance with her but she would refuse. She even asked her where her room was but she did not tell her.
When she went to bed that night, she lied to the Claimant that she would be right back so that she wouldn’t follow her. While in bed, she heard a knock on her door and the Claimant calling out her name telling her to open the door for her because she wanted to tell her something. She refused and the Claimant continued banging the door. Eventually, she became tired and left.
The Sunday after the team building event, the Claimant sent her a direct message on Twitter telling her that she liked her even though she didn’t reciprocate her feelings. According to Joyce, the Claimant knew that she wanted her to keep off but she said she wouldn’t. She went on to describe how she would see her going to pick up her headsets while at work and her heart would pound. Joyce stated that when the Claimant sent her these messages, she replied to her and clearly stated that she did not want anything to do with her. She blocked the Claimant from all her social media accounts.
This statement by Joyce was supported by the screenshots of Twitter messages exchanged between herself and the Claimant. The following day, Joyce told her to stop disturbing her. This did not stop the Claimant as she proceeded to send Joyce a message on Facebook who in turn blocked her. She then turned to Twitter and sent Joyce another message and Joyce told her that she was now harassing her.
The Court reproduced the message by the Claimant to Joyce as follows:
“ I tried messaging on FB but I was informed in Swahili that you are not receiving messages from me right now. I know you want me to keep off. But I won’t. There was a time you used to sit in Simba behind my locker and I would see you everyday when coming for headsets and my heart would pound every time. And I still feel the same way but you made it clear last year that we can’t be and even though I accepted it, I suddenly became excited about the team building when I saw your name on the list. I am sorry I am so annoying.”
Joyce in her response, wrote back: “Everytime we what??? I made it clear I don’t want anything to do with you. In case that wasn’t clear. leave me alone i don’t want to be ur friend (I have enough friends) or anything else. Keep being a nuisance and I’ll report u. This is now harassment!!!. Consider yourself blocked.”
Harassment of Esther
Esther filed the complaint that preceded the disciplinary case. In her statement, the Claimant admitted that she had made advances towards Esther who did not reciprocate. She admitted texting her that she was planning to move to South B so that she could be close to her but Esther did not respond to her text. She later thought about the move and it appeared creepy so she decided to move elsewhere.
In her statement to the Ethics and Compliance team, Esther stated that she met the Claimant when they worked together at a previous employer before moving to this employer. According to her, whenever she complemented the Claimant, she would interpret it differently and so she stopped. The Claimant continued making numerous advances towards her on Facebook and WhatsApp and she told her she was not interested. However, she did not stop. She even told her that she would report the matter but the Claimant said that even she could take herself to the Human Resource.
Esther further stated that the Claimant had informed her that she was planning to move to Balozi Estate in South B, where she lives. She found this to be very threatening as she was not sure what would happen when the Claimant lived close to her. In Court, the Employer produced an extract of WhatsApp messages exchanged between the Claimant and Esther. The Court found that the messages corresponded with the statements made by Esther and the Claimant to the Ethics and Compliance team.
Another colleague, Rueben confirmed in his written statement that the Claimant sent him a direct message on Instagram informing him that she liked Esther. When he spoke to Esther about the Claimant, Esther became annoyed that the Claimant was continuously making advances to her yet she had told her that she was not interested.
Reuben’s statement was confirmed by screenshots of Instagram messages he had exchanged with the Claimant.
Micah who was also the Claimant’s colleague stated that Esther had confided in him that the Claimant made her feel uncomfortable as she was making advances towards her. Esther requested him to talk to the Claimant to stop. The Claimant promised to stop but kept sending messages which made Esther uncomfortable.
In addition, the Claimant acknowledged in one of the messages exchanged with Esther, that she knew that Esther had decided that she should not talk, text, or call her. She further wrote:
“ Remember when I wanted to give you a foot rub?? But only one person saw things. Which is weird….so I will take you to HR and report myself. I will tell Bob that I’m sexually harassing you and that I’ve wanted to kiss you since Kencall days…”
She then sent Reuben a message as follows; “I texted her last night “I love you Muthoni. I will always love you…Even when you hate me. Tell HR I said that.”
Was this a case of sexual harassment?
Section 43 of the Employment Act creates an obligation upon an employer who wishes to terminate an employee. The employer is required to prove the reason or reasons for the termination, and where it fails to do so, the termination shall be deemed to have been unfair. This is the first requirement in terminating the employment contract.
The Employer accused the Employee of sexually harassing her colleagues. In the eyes of the Court, the messages further confirmed that the Claimant was aware that her advances towards Esther were unwanted and amounted to harassment. According to the Employer’s Harassment Policy, it defined sexual harassment to mean:
“An unwelcome and unreciprocated sexual advances, requests for sexual favours and other verbal or physical or conduct of a sexual nature which results in the individual feeling threatened, disadvantaged or compromised in any way.”
The policy went ahead to enumerate examples of sexual harassment (verbal and non-verbal) to mean; unwelcome language of a suggestive or sexually explicit nature; unwanted propositions of a sexual nature; or sexually offensive letters/memos, emails etc.
Based on the evidence presented, the Court concluded that “Applying the above definitions to the circumstances of this case, I am persuaded that the Respondent has proved on a balance of probabilities that it had sufficient reasons to believe that the Claimant had breached its Harassment Policy by making unreciprocated and unwelcome sexual advances towards her colleagues… In total sum, I am of the considered view that the Respondent has proved to the requisite standard that the reasons for the Claimant’s termination from employment were valid, fair and related to her conduct.”
Did the Employer follow the correct process in terminating her employment?
Section 45(2) of the Employment Act creates the requirement for fair procedure in terminating an employee. Further, Section 41 (1) of the Act makes specific requirements concerning the process to be complied with by an employer. It entails notifying the employee of the allegations levelled against him or her and thereafter granting him or her the opportunity to make representations in response to the said allegations in the presence of a fellow employee or a shop floor union representative of their own choice.
The Court while reviewing the evidence found that the Claimant’s disciplinary process was commenced by way of a notice of suspension dated 7th October 2016. Seemingly, the suspension was to pave the way for investigations. The record further reveals that on 7th October, 2016, the Claimant was issued with a Notification of a Disciplinary Hearing in which she was informed that:
“ On a number of instances, you have sexually harassed your colleague by your persistent offensive and unwelcome behaviour/remarks/innuendos which are sexual in nature. Further, your unwanted behaviour has continued despite several requests by your colleague to stop thereby causing her grave discomfort.”
Through the same Notification, the Claimant was also advised that her disciplinary case would be heard on 10th October 2016.
The Court noted that based on the Notification reproduced above, the identity of the colleague the Claimant had sexually harassed was not revealed. As it turned out from the investigations, four of the Claimant’s colleagues alleged that she had sexually harassed them. That being the case, the court wondered “which of the Claimant’s four colleagues was being referred to in the Notification?”
The principle of fair trial is that a person must be made aware of who their accuser is so that they can defend themselves robustly. When a disciplinary hearing is conducted without disclosing the identity of the complainant, the rights of the employee being disciplined are violated. The Court observed that “Indeed, it is notable that during the disciplinary hearing, the Claimant kept enquiring which of her colleagues had complained about her behaviour. However, no answer was forthcoming from the panelists. How was the Claimant expected to defend herself effectively without knowing who the complainant in her case was? The identity of the complainant was very crucial in this case, as it would have ensured that the Claimant was well informed of all the particulars regarding the allegations against her. Without such crucial information, it may very well be said that going in for the disciplinary hearing, the Claimant was ill-prepared as she was not fully aware of the allegations laid out against her by the Respondent and the kind of defence she needed to mount against the same. It is more than probable that this compromised her line of defence during the hearing.”
The Courts in Kenya have held that an allegation of misconduct against an employee should be specific and not general. It should lay down the facts and leave no room for doubt about what the employee is accused of. For the process to pass the test of fairness, a person must know the case against them. In this case, the Court wondered why the Employer did not advance any plausible reason as to why it remained mysterious about the identity of the colleague the Claimant had allegedly harassed sexually. In Justice Stella Rutto’s opinion, “Nothing would have been easier than for the Respondent to fully disclose the allegations against the Claimant by providing the name (s) of the colleagues who she had allegedly harassed sexually. Therefore, in as much as the Respondent appears to have complied with the procedural requirements under Section 41 of the Act, the same was marred by the fact that the Claimant went in for the disciplinary hearing not fully knowing the allegations she was to be confronted with. In the end, the process was procedurally unfair against the Claimant hence her termination was unlawful.”
Reliefs
The Employer passed the test of the substantive reason for the termination but failed the test of procedure. The Claimant’s termination although substantively justified was procedurally unfair, the Court awarded the employee compensatory damages of Kshs. 258,808, equivalent to four (4) months of her gross salary.
Conclusion
On 28th June 2024, we have organized a Law Masterclass on handling sexual harassment in the workplace. The training will take participants through emerging issues surrounding sexual harassment. We will look at the legal threshold for maintaining a safe working environment free of sexual harassment while studying emerging areas such as gender identity, sexual orientation, and social media. The course will also empower participants on how to collect evidence and engage in the disciplinary process to ensure minimal legal risks and liabilities.
To Register, send your details through the link below:
https://forms.gle/fbaMeY3pWxskmmMC8
The contents of this newsletter do not constitute legal advice and are provided for general information purposes only.
James Njeri and Company Advocates
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