Ratified treaties;¹ instrument not subject to ratification² 

Discrimination/ HIV and AIDS/ Maternity/ Equal remuneration/ Direct resolution of a dispute on the basis of international law 

The claimant had worked as a telephone operator for the defendant from March 2000 to March 2010. During this period, the claimant had various temporary contracts. Of the three employees working as telephone operator staff, the claimant was the only woman. The claimant indicated that during the time she worked for the defendant she was discriminated against for being a woman: her male colleagues were paid four times more than her, and enjoyed housing and transport allowances, as well as medical insurance, while she was paid a lower wage with no additional allowances.

On 15 March 2003, the claimant applied for a permanent position as a telephone operator/receptionist and was selected for the job. During the medical examination prior to her incorporation into the new position, the claimant was subjected to an HIV test without being informed beforehand. The test result was positive. Following the medical examination, the claimant received no further information on the post for which she had been selected, and continued to work in her old job. In 2006, the claimant expressed her dissatisfaction with her wages in writing. The defendant responded 7 months later, conceding the wage increase but denying the claimant any other allowances. In 2008, the claimant became pregnant and took three months’ maternity leave, entirely unpaid by the university. In March 2010 on the date when her most recent contract expired the contract was not renewed. Based on the aforementioned grounds, the claimant requested that the dismissal be declared wrongful and unfair, claiming compensation for the discriminatory treatment she had been subjected to.

In order to resolve the dispute, the Industrial Court of Kenya made use of Kenya’s Employment Law of 2007, which promotes equality of opportunities and the elimination of discrimination in the workplace based on gender or HIV status. The Court also indicated that article 28 of the Constitution establishes that all people have the right to protection of their dignity. This protection in the sphere of employment implies the equal treatment of men and women. The Court also reminded that Kenya had become a monistic State as per art. 2 of the Constitution of 2010 and, thus, it “shall refer to the international law relevant to this matter”.³ 

Therefore, it referred to the definition of remuneration and equality of remuneration established in art. 1 of ILO Convention No. 100. On this basis, it concluded that the claimant had been treated differently to her male colleagues while actually doing the same work. The Court also referred to the definition of discrimination contained in art. 1 of ILO Convention No. 111. Finally, it considered para. 3(c) of ILO Recommendation No. 200, which it establishes that “there should be no discrimination against or stigmatization of workers, in particular jobseekers and job applicants, on the grounds of real or perceived HIV status [...].”⁴

Thus, making use of national legislation, ILO Conventions Nos. 100 and 111 and ILO Recommendation No. 200, the Court concluded that the claimant had been the victim of discrimination based on gender and HIV status. Moreover, it found that “her pregnancy status accelerated the discrimination leading to the eventual termination”.⁵ The Court ordered the defendant to pay the difference between the claimant’s wages and those of her male colleagues up to the point when she had received a wage increase. It also ordered the defendant to pay the months of maternity leave, overtime hours not recognized, compensation of 12 months’ wages for unfair dismissal and further compensation on the grounds of discriminatory treatment based on the claimant’s HIV positive status.