The Employment and Labour Relations Court has ruled that romantic relationships between employees are lawful and barred employers from implementing policies or laws that interfere with matters of the heart.
In a landmark judgment, the court cautioned employers against meddling in workplace romances, warning that such interference could amount to a violation of employees’ privacy rights.
“The purpose of a Sexual Harassment Policy is not to police romantic relationships or prohibit marriages and families between consenting employees. Romantic relationships at the workplace must be left to run their natural course. It is a harebrained law or policy that seeks to outlaw the affairs of the heart,” Justice James Rika said in his September 20, 2024 decision.
This ruling follows a complaint lodged by Mark Ngugi Mwaura, who accused G4S Kenya of unfairly terminating his employment. Mr Mwaura’s career with G4S began in 2000 as a management trainee. 20 years later, he had risen through the ranks to become the regional operations manager in Nairobi, earning a monthly salary of Sh270,400. But, in 2020, his employment was terminated after he was accused of sexually harassing a subordinate, Anne Mukami, and orchestrating her irregular transfer to a new workstation with better benefits.
Represented by his lawyer, Cynthia Kwamboka, Mr Mwaura argued that he had been unfairly dismissed. He recounted being forced to undergo a DNA test to establish whether he fathered Ms Mukami’s child. The test came back negative, yet G4S proceeded to terminate his contract over sexual harassment allegations. Mr Mwaura claimed that his relationship with Ms Mukami lasted only two months and had ended long before her transfer.
Lawyer Kwamboka further noted that her client was unaware of G4S’s Sexual Harassment Policy, only learning about it after his dismissal.
G4S defended its actions by asserting that Ms Mukami, a security guard, had reported to the human resource director that she had been in a sexual relationship with Mr Mwaura in 2016 and 2017, during which they allegedly had a child, and that Mr Mwaura had refused to offer child support.
Ms Mukami also claimed that Mr Mwaura used his influence to transfer her from a top hospital in Nairobi to a receptionist position at a soft drinks firm, a role that came with an additional Sh10,000 monthly allowance.
When called to a disciplinary hearing, G4S said that Mr Mwaura admitted to the relationship. The company maintained that engaging in a romantic relationship with a subordinate violated its Sexual Harassment Policy.
In his judgment, Justice Rika acknowledged that G4S failed to distinguish between a consensual relationship and sexual harassment. He emphasised that not every workplace relationship amounts to harassment.
“As long as there are employees of different genders [or even of the same gender] working in the same space, romantic or sexual relationships are inevitable. These relationships start naturally, through the law of attraction,” the court said.
Woman harassing man
The court further ruled that although there was evidence of a relationship between Mr Mwaura and Ms Mukami, there was no convincing evidence to suggest it constituted sexual harassment. The judge also noted that no proof was provided to show Ms Mukami secured her transfer by offering sexual favours.
The court found the security company’s conclusion that the claimant had engaged in sexual harassment to be puzzling, given that G4S had accused Ms Mukami of engaging in the relationship for personal gain and of failing a test of integrity by falsely claiming that Mr Mwaura was the father of her child and repeatedly blackmailing him for money. Having found her gulity of these, G4S terminated her employment. These actions, the court noted, were classic examples of a woman sexually harassing a man for personal benefit.
Additionally, the court declared G4S’ Sexual Harassment Policy unconstitutional, criticising it for interfering with employees’ private lives. “An employee is entitled to the right to pursue a romantic relationship at the workplace, a right which falls under privacy rights in our Constitution,” the judge said.
Justice Rika noted that workplace relationships should not be policed unless they directly impact work performance or violate clear, legal standards of workplace conduct.
He noted that some workplace romances also prove to be beneficial to the employer’s business when they blossom and result in a family. He said this referencing the Bill and Melinda Gates relationship. “Bill and Melinda Gates met at the Microsoft workplace, where Bill was the CEO and Melinda an employee. They built the globally renown Microsoft brand,” Justice Rika said.
The court ultimately concluded that Mr Mwaura’s termination was unfair and awarded him Sh3,244,800 in compensation. G4S was also ordered to issue him a certificate of service.
