Pregnant employee removed from Whatsapp groups, blocked from email paid Sh4.4 million

An employer who removed a pregnant employee from 21 work-related WhatsApp groups has been ordered to pay her more than Sh4.4 million in damages.

The employer had also blocked the employee’s email while she was on authorised sick leave.

The Employment and Labour Relations Court in Nairobi ruled that Hallmark Marketing Limited constructively and unfairly dismissed Fidelis Wambui, a customer service officer employed since March 2016, by severing her access to all work communication channels after she requested extended bed rest due to pregnancy complications.

The judgment, delivered by Justice Njagi Marete, found the company's actions amounted to discrimination and a violation of Wambui's fundamental rights.

The court heard that Wambui, who earned a basic monthly salary of Sh50,000 and had never been issued with a formal employment letter or pay slips, informed the CEO she required 28 more days of medically recommended bed rest.

Her request on April 13, 2021, was met with hostility. Two days later, she received a letter placing her on indefinite unpaid leave, citing the Covid-19 pandemic.

By April 19, she had been removed from all work-related WhatsApp groups and her work email blocked.

The company argued that its actions were necessitated by financial restructuring linked to the pandemic and the loss of client contracts. The court, however, noted that no redundancy notices, meeting minutes, or universal staff communications were produced to substantiate this claim.

Justice Marete found the chronology of events compelling and devastating to the respondent's defence.

"This sequence, occurring within days and while the petitioner was vulnerable due to pregnancy complications, signifies a reaction to her pregnancy and not a pre-planned restructuring due to Covid-19."

The judgment addressed the nature of constructive dismissal in the digital age, defining the removal from work platforms as a fundamental breach of contract.

Citing precedent, the judge stated, "The act of removing an employee from all work platforms while on authorised sick leave is a repudiation breach of the employment contract, demonstrating an intention to no longer be bound by it."

This clarified that digital exclusion can be as damaging to the employment relationship as physical exclusion from the workplace.

The respondent further attempted to argue that Wambui's employment was intermittent and dependent on specific client contracts, but failed to produce any fixed-term agreements as evidence.

Beyond the unfair dismissal, the court found that the treatment Wambui endured constituted direct discrimination under Article 27 of the Constitution and violated her dignity under Articles 28 and 29.

"Subjecting her to this treatment while she faced serious health challenges and the tragic loss of her child amounted to inhuman treatment and a violation of her dignity."

The court awarded Sh3 million in constitutional compensation specifically for these violations, describing them as "egregious" and deserving of "significant redress."

The total award comprised one month's salary in lieu of notice (Sh50,000), unpaid house allowance for 61 months (Sh457,500), accumulated leave pay for five years (Sh175,000), service pay (Sh143,750), 12 months' gross salary as compensation for unfair termination (Sh600,000) and the Sh3 million constitutional damages, bringing the total to Sh4,426,250, plus costs and interest from the date of judgment.

The ruling arrives against a backdrop of increasing judicial scrutiny of digital workplace practices.

Earlier in February, the same court awarded a former security guard nearly Sh700,000 after she was dismissed via a late-night WhatsApp text with no reasons given.