The Judgment of the Kenyan Employment and Labour Relations Court on “Interns” as “Employees” – Constitutional Legislation and Philosophy
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On 17th April 2024, the Work and Labour Relations Court of Kenya shipped an fascinating judgment at the intersection of labour law and the Structure (The Forum for Good Governance and Human Rights vs Instructors Assistance Commission and Ors.). At difficulty was the point that the Academics Service Commission (a statutory system) had engaged a selection of instructors that it identified as “intern academics.” “Intern teachers” ended up engaged on non-renewable eleven-month contracts (as opposed to lasting instructors, who ended up also entitled to pensions). Their status, thus, was not that of employees, but that of contractual employees, and they ended up paid allowances instead of salaries. The Point out justified this by arguing that this was intended to “benefit youthful persons coming into the occupation sector.” (paragraph 4)
In a terse judgment, the ELRC held that the follow of recruiting “intern teachers” on a contractual foundation was illegal and unconstitutional. The main of the Court’s argument was that the so-named “intern teachers” were duly competent and educated therefore, classifying them as interns was an attempt by the State to “escape the inescapable outcome of the work connection and authorized safeguards.” (paragraph 8(b)). Importantly, the Court docket drew upon Report 41 of the Kenyan Structure (the warranty of reasonable labour practices) to hold that the prerogative of the employer to “define the styles of the terms and conditions” of do the job was matter to the necessities of Article 41. In this scenario, the evidence – which bundled both equally the nature of the perform and the skills of the “intern teachers” – shown that the targets of classifying them as “intern teachers” was in fact the evasion of labour regulation obligations. The Court buttressed this acquiring by referring to the Intercontinental Labour Organisation’s well-known Suggestion 198, which warned towards “disguised work relationships”, which masked an employee’s “true legal standing,” and experienced the outcome of depriving them of the lawful safeguards that they have been in any other case entitled to.
On its individual, this discovering would be unremarkable: the challenge of disguised work status (or “misclassification”, as it is popularly identified) is perfectly-regarded, and courts across jurisdictions have devised strategies to address it by heading at the rear of the labour contract, in get to look at the real nature of the connection in query. This has been particularly stark in the context of gig and platform get the job done (see, e.g., the dialogue of the Uk Supreme Courtroom in Uber vs Aslam for an instance). What is fascinating, nonetheless, is the Court’s anchoring of its interpretation of labour regulation within Article 41 of the Constitution (and, relatedly, in just Write-up 27 as properly, which sets out the guarantee of non-discrimination). Remember that very last 12 months, the ELRC had completed some thing equivalent when inspecting the obligations of Meta toward its written content moderators, and keeping that Meta could not outsource its obligations to neighborhood, third-celebration contractors (see right here).
Let us call this “workplace constitutionalism.” We can fully grasp office constitutionalism as an tactic where by the Structure informs the interpretation and evolution of labour laws, and in which the latter is understood in mild of constitutional norms (see e.g. Chapter 6 of this author’s PhD Thesis Horizontal Legal rights: An Institutional Solution). The advantage of workplace constitutionalism is that it brings in autonomous constitutional concepts (this kind of as equality and non-discrimination, structural dissimilarities in energy, and so on) to bear upon the labour agreement, and its design less than labour legislation. With the Meta situation, and now this situation, we can see the ELRC commencing to incrementally construct a jurisprudence of office constitutionalism.
The other intriguing aspect of the judgment is that at the quite commencing of its assessment, the ELRC retains that interns are “employees” for the functions of labour law. It does so by citing its individual precedent from 2021, and thinking about the definition of “employee” underneath part 2 of the Kenyan Work Act, which defines “employee” as such as “apprentice” and “indentured learner.” It retains that the definition is large adequate to consist of “learners” who find out by fingers-on working experience or technical instruction another person expert in the field (the classical being familiar with of “intern”). Whilst the Court docket does not go even more with this, as its aim is on the keeping that the academics ended up misclassified as interns, even so, a locating that interns are “employees” and consequently entitled to labour legislation safeguards is unquestionably innovative (and really significantly in line with the comprehending of workplace constitutionalism, as talked over above). It will be important to see if this is taken forward further, in other cases involving “interns” in other professions.
Lastly, the Court’s remedy is considerably disappointing, as it refuses to get the regularisation of the “intern teachers” or the payment of again-wages, halting only at keeping the contracts to be unlawful (presumably, the statutory authority will now have to re-seek the services of men and women in opposition to existing vacancies, on the identical terms as it engages everlasting lecturers). In my view, this was a fit scenario for regularisation and the payment of back again-wages on the other hand, that mentioned, the reasoning of the Court is unquestionably important, and adds a different brick to the foundations of office constitutionalism in Kenya.
