LABOUR LAW

Question 1

Strikes and lock-outs are important concepts in the context of labour law. They are

commonly used tactics by employees and employers to assert their rights and demands.

However, the use of these tactics has been a subject of much debate, with critics arguing that

strikes and lock-outs disrupt the economy and the business environment. Subject to fair labour

practices and right to go on strike.

A strike is defined as the refusal of employees to work until certain demands or

grievances are met by their employer. It is the cessation of work by employees demanding to get

their demands accepted and addressed by the employer.1 It is used by the employees in an

attempt to safeguard their rights and interests. Strikes in Kenya are governed by the Labour

Relations Act of 2007, which requires that employees follow certain procedures before

embarking on a strike. These procedures include giving the employer a written notice of the

intended strike at least seven days before the strike commences, engaging in conciliation with the

relevant authorities, and exhausting internal dispute resolution mechanisms.2

Lock-Out which is defined as the temporary closing of a place of business by an

employer during a labour dispute.3 It is suspension of work for purposes of accepting any

demand in respect of a trade dispute but not for the purpose of finally terminating employment.

The purpose of a lock-out is to put pressure on employees to return to work or accept the

1
Section 2 of the Employment Act, 2007
2
Section 76 (c) of the Labour Relations ACT, 2007
3
Section 2 of the Employment Act, 2007
employer's terms and conditions. Like strikes, lock-outs in Kenya are governed by the Labour

Relations Act, and employers are required to follow certain procedures, such as giving a written

notice to employees and engaging in conciliation before the lock-out commences. Lock-outs

have been heavily criticized for their negative consequences on employees, who may suffer loss

of income and access to essential services. They have also been used as a tactic to weaken the

bargaining power of employee unions by disrupting the continuity of their members'

employment. The Act also allows the government to intervene and declare the lock-out illegal,

which may further escalate the dispute.

Section 78 of the Labour Relations Act, 2007 outlines the circumstances under which a

strike or lock-out can be considered unlawful. This provision prohibits any person from taking

part in a strike or lock-out or any conduct in contemplation of a strike or lock-out if certain

conditions are met. The provision also prohibits sympathetic strikes and lock-outs, where

employees or employers take industrial action in support of a trade dispute to which they are not

directly involved. This prevents the spread of industrial action to unrelated issues and ensures

that strikes and lock-outs are focused on resolving specific trade disputes.

Categories of Strike: Protected; Unprotected.

Protected Strike is provided for under section 79 (1) of the Labour Relations Act as that

strike that complies with the requirements in the LRA, where the subject matter of the strike is

legitimate. If a person participates in a lawful (protected) strike or lockout, they will not be

committing a breach of contract.4 Legally protected strikes cannot be terminated or disciplined

by employers. However, an employer is not compelled to reimburse an employee for services not

given during a strike or lockout. A legally protected strike or lockout participant cannot be sued

in civil court. An employee who actively participates in, supports for, or encourages an illegal
4
Section 79 (2) of Labour Relations Act, 2007
strike may have broken their employment agreement. They may face disciplinary action and will

not be eligible for Employment Act 2007 pay or benefits during the strike. However, an

employee who actively participates in, advocates for, initiates, or encourages an illegal strike

violates their employment agreement. As a result, they may be disciplined and ineligible for

Employment Act 2007 pay or benefits during the strike.

An employee who participates in, promotes, starts, or encourages an illegal strike violates

their employment agreement. Thus, the employee may be disciplined and ineligible for

Employment Act 2007 wages and benefits during the strike.

In terms of efficacy, strikes and lock-outs have been seen to have both positive and

negative impacts. On the positive side, they provide a means for employees to assert their rights

and demands, especially in cases of exploitation or violation of labour laws. Strikes can also

result in improved working conditions and wages. On the other hand, their negative impacts

include disruptions to essential services and the economy, loss of income for employees, and

weakening of employee unions. Moreover, strikes and lock-outs highlight the underlying issues

between employees and employers and provide an opportunity for negotiation and resolution of

disputes. However, if the underlying issues are not adequately addressed, strikes and lock-outs

may become a recurring cycle, causing further disruptions and harm to both parties.

Question 2

First and foremost, it is important for Jane to understand her rights as an employee under

the Employment Act (EA), 2007. She has the right to a workplace free from all forms of sexual

harassment. Section 6 of the EA: Sexual harassment is defined by specific actions and behaviors

outlined in the law. An employee is considered sexually harassed if their employer,

representative, or co-worker engages in certain conduct. This includes making explicit or implicit
requests for sexual activity, using sexually explicit language or visual material, or exhibiting

unwelcome or offensive physical behavior of a sexual nature. Sexual harassment has a myriad of

implication, one in the productivity of the employee, on job satisfaction and also on the

psychology of the employee. Employers with twenty or more employees must develop and issue

a policy statement on sexual harassment after consulting with employees or their representatives.

The workplace sexual harassment policy should include a reporting method and shield victims'

statements from victimization. Employers must inform workers about this policy.

Section 6 of the EA protects her against professional sexual harassment. Any sort of

sexual harassment—physical, verbal, or non-verbal—violates her employee rights. Jane has

reported sexual harassment to management. However, the corporation did nothing to address her

complaints, which is disappointing. It permitted the line manager to continue his misbehavior.

This violates the EA, 2007, which requires employers to establish sexual harassment policies and

processes.

Section 6(3) of the EA requires employers to have a sexual harassment policy statement

that defines sexual harassment and states that every employee has the right to a workplace free

from it. The company must also prevent sexual harassment and provide a way to report and

address complaints. The employer violated rights and EA obligations by not following these

criteria.

Jane might now write to the employer about her sexual harassment and the management's

inaction. This complaint can be backed by section 6(4) of the EA, which states that your

employer should bring the policy statement to the attention of all their employees and take

necessary disciplinary measures against anyone found guilty of sexual harassment.

 Moreover, Article 28 of the Constitution of Kenya (COK) recognizes the inherent dignity

of every person and their right to have their dignity respected and protected5. Sexual harassment

is a violation of dignity and is therefore a violation of one’s fundamental rights under the COK.

Jane has the right to a safe and respectful workplace, and the employer has the responsibility to

ensure that the dignity is protected. Hence, their failure to take appropriate action against your

line manager also amounts to a violation of her constitutional rights.

Jane has the right to take legal action against the employer for their failure to address her

complaints. She can approach the Employment and Labour Relations Court to seek redress for

the violation of her rights under the EA and the COK.

5
Article 28 of the Constitution of Kenya.