Kenya’s Employment and Labour Relations Court (ELRC) has delivered a stinging rebuke to digital sidelining. The court ruled that removing an employee from official work WhatsApp groups and email communications without due process constitutes unlawful discrimination and constructive dismissal.
The legal battle pitted Fidelis Wambui, a dedicated customer service officer since 2016, against her employer, Hallmark Marketing Limited.
The dispute began in early 2021 when Wambui, facing pregnancy-related health complications, was placed on medically recommended bed rest. While she was away seeking care for herself and her unborn child, the company took swift, silent action. On April 19, 2021, just days after Wambui requested an extension of her leave, she was abruptly removed from 21 official work WhatsApp groups and her access to company email was revoked.
Hallmark Marketing Limited argued that the company was under immense financial strain due to the COVID-19 pandemic and the loss of a major contract. They claimed Wambui was merely a temporary or agency worker and that her removal was part of a necessary restructuring.
The court, however, saw through these claims. Justice noted that:
- Lack of Documentation: The company failed to provide any redundancy notices or meeting minutes to prove a financial crisis.
- Employment Status: Since Wambui had received a steady salary for five years without a written contract stating otherwise, the law deemed her a permanent employee.
- Timing: The decision to cut her off digitally happened almost immediately after she requested pregnancy-related leave.
The court found that sidelining staff through digital exclusion is not just a sign of poor management, it is a breach of constitutional rights. The final judgment awarded Wambui a total of Ksh. 7.4 million in damages:
- Ksh. 4.4 Million: For constructive dismissal and breach of fair labor practices.
- Ksh. 3.0 Million: For the violation of her constitutional rights, specifically discrimination based on her protected status as a pregnant woman.
The ruling establishes three critical precedents for the Kenyan labour market:
- WhatsApp groups are no longer “informal chat rooms.” They are recognized as primary communication channels. Excluding a staff member from these groups is legally equivalent to locking them out of the office building.
- By cutting off an employee’s digital access, an employer creates a situation where the employee can no longer perform their duties, forcing a termination of the relationship.
- Under the Employment Act and the Constitution, any action that targets an employee due to pregnancy carries heavy financial and legal liabilities.
The case of Wambui vs. Hallmark Marketing serves as a warning to HR departments that the law will follow and protect the worker into the digital space.
Read the full Wambui vs. Hallmark Marketing judgement HERE.