The Employment and Labour Relations Court has awarded a former employee of Sun Power Products Limited (Brown’s Food Company) KSh1 million in damages after finding that she was subjected to an unlawful and degrading “menstrual verification” exercise that violated her constitutional rights to human dignity, privacy and fair labour practices.
In a judgment delivered by Justice Dr. Jacob Gakeri, the court held that the company was vicariously liable for the actions of its former Human Resource Manager and Quality Assurance Officer, who forced female employees to remove or expose their undergarments in a workplace toilet to determine who had disposed of a sanitary pad in a dustbin. The judge described the conduct as humiliating, degrading and unconstitutional.
The petitioner, Caroline Wanjiku Kangethe, told the court that on July 4, 2023, she and about 35 other female employees were compelled to undergo the intrusive inspection after being threatened with losing their jobs if they refused. She argued that the incident violated her constitutional rights and later led to a hostile working environment, discrimination in overtime allocation and ultimately her constructive dismissal after she resigned in June 2024.
She sought declarations that the company’s actions amounted to sexual harassment, gender-based violence, false imprisonment and unfair termination. She also sought compensation, aggravated and exemplary damages, a written apology and orders compelling the employer to implement stronger workplace safeguards against sexual harassment and discrimination.
The company admitted that the incident occurred but maintained that it was carried out without the knowledge or approval of senior management. It argued that the two officers acted on a “frolic of their own” in breach of the company’s internal policies on privacy and sexual harassment. The employer told the court that both officers were dismissed following disciplinary proceedings and that affected employees were offered professional counselling. It further denied allegations of discrimination, retaliation and constructive dismissal, insisting that Kangethe resigned voluntarily to pursue other opportunities.
Justice Gakeri found that the forced inspection violated Articles 28, 29, 31 and 41 of the Constitution by infringing the petitioner’s rights to dignity, freedom from degrading treatment, privacy and fair labour practices. The judge held that although the actions were unauthorized, they were committed by senior officers in the course of their employment while exercising authority over staff, making the employer legally responsible for their conduct.
“The Respondent employed the two officers and gave them responsibilities over other staff and thus cannot escape liability for their nefarious acts committed in the course of their employment against fellow employees at the workplace,” the judge ruled.
However, the court rejected claims that the petitioner had been discriminated against in overtime allocation or subjected to victimization, finding that she failed to establish evidence of differential treatment. The judge also dismissed the claim of constructive dismissal, noting that the petitioner continued working for nearly a year after the incident, acknowledged during cross-examination that her terms of employment remained unchanged, and resigned through a letter expressing gratitude for the opportunities she had received.
Justice Gakeri further declined to find that the petitioner had been falsely imprisoned, observing that there was no evidence that the employees had been physically confined or prevented from leaving the inspection area.
The court awarded Kangethe KSh1 million in general damages for the violation of her constitutional rights and costs of the suit.
