A harassment complaint on your desk sets legal duties in motion, whatever your initial impression of it. How the employer responds in the first days shapes both the outcome for the individuals and the employer’s position if the matter later reaches the Employment and Labour Relations Court. The steps below outline what the law expects and how a defensible process runs.
What legal duties does an employer owe under Kenyan law?
The Employment Act 2007 requires employers to provide a working environment free from sexual harassment, and it obliges employers with at least twenty employees to issue a written policy statement after consulting their employees. A complaint that is ignored, or met with informal assurances only, can itself ground a claim. The duties apply regardless of the seniority of the person complained about.
How should an investigation be handled?
- Acknowledge the complaint promptly and in writing
- Appoint an impartial investigator with no stake in the outcome
- Interview the complainant, the respondent and witnesses separately and confidentially
- Consider interim measures that keep the parties apart without prejudging either
- Reach a reasoned finding and communicate the outcome to both parties
- Act on the finding proportionately and keep dated records
How do you protect the people involved?
Assure the complainant, in writing, that raising a concern in good faith will not be treated as a ground for victimisation, and monitor for reprisals. The respondent is also entitled to fairness until the facts are established. Complaint files contain sensitive personal data, so their handling should follow the Data Protection Act 2019, with access limited to those who need it. If the matter reaches the Employment and Labour Relations Court, the file will be examined in full.
When to bring in counsel
Internal capacity is not always enough where allegations are serious or involve senior figures. External investigators, and advice on interim measures, reduce the risk of process failures; our governance advisory team supports policy design, and our ADR practice assists where the parties prefer a mediated resolution.
This article was written by Charles Muriu Mathenge, who advises businesses, HR directors and boards on corporate and commercial matters at CS Advocates LLP.
For guidance on your specific situation, contact CS Advocates LLP , call, WhatsApp, or book a confidential consultation at our Westlands, Nairobi office.