By Desmond Odhiambo
A recent ruling by the Employment and Labour Relations Court of Kenya marks a significant milestone in the country’s employment landscape, particularly in the context of internships and the treatment of individuals and any worker who falls under this classification.
Now the Kenyan employment landscape must pay attention, because this landmark decision, which found the Teachers Service Commission (TSC) guilty of unfair and discriminatory practices by employing qualified teachers as interns, has far-reaching implications for employers across various sectors.
At its core, the ruling answers one fundamental question: Should interns be considered employees under Kenyan law, especially when they perform duties that align with their qualifications? The court’s answer was unequivocal.
It ruled that the practice of employing qualified teachers as interns violates their rights to fair labour practices and equal treatment—rights that are enshrined in Kenya’s Constitution and supported by various international conventions.
I find this ruling both timely and crucial in reinforcing the legal protections available to workers in our country. The court has reiterated a key legal principle: interns, particularly those performing full duties that align with their qualifications, should be regarded as employees. This decision aligns with the broader purpose of employment law, which is to safeguard workers’ rights and ensure fair treatment within the workplace.
The practice of labelling qualified professionals as interns to avoid the obligations and protections afforded to employees under the law is not only unethical but also illegal. This is supported by key legal frameworks, including the Employment Act, CAP 226, the Constitution, alongside international labour standards, highlights the importance of safeguarding workers from exploitative practices.
For employers, this decision serves as a critical reminder that the right to fair labour practices is non-negotiable. Employers must be vigilant to ensure their contractual arrangements do not infringe on the rights of their employees, particularly those who are vulnerable, such as interns and trainees. The ruling makes it clear that attempts to disguise employment relationships to circumvent legal responsibilities will not withstand legal scrutiny.
This judgment has broader implications, particularly in sectors where internships, learnerships, and apprenticeships are commonplace. These arrangements are essential for skills development in our economy, but they must not be used as a means to exploit workers. The ruling aligns with international standards, including the International Labour Organisation’s Quality Apprenticeships Recommendation, which advocates for equitable treatment of apprentices and permanent employees.
As the dust settles, the influence this move has on future employment practices in Kenya cannot be overstated. Employers are now on notice: the defence of freedom of contract cannot be used to justify practices that infringe on the right to fair labour practices. The court has affirmed that employment is determined by the realities of the working relationship, not merely by the terms of a contract. Any attempt to structure employment agreements in a way that undermines legal and constitutional protections will be subject to rigorous scrutiny under the principles of social justice that underpin our employment laws.
This decision is absolutely a watershed moment for Kenyan employment law. It not only strengthens employee protections but also sends a clear message to employers about the paramount importance of upholding fair labour practices. The path ahead for employers is clear: ensure that your employment practices are not only compliant with the letter of the law but also with its spirit, which is rooted in fairness, equity, and justice for all.
Writer is a Partner, Employment Law Practice, at Cliffe Dekker Hofmeyr (CDH) Kenya
