“Romantic relationships in the workplace must be left to run their natural course. It is a harebrained law or policy that would seek to outlaw the affairs of the heart. Employers must leave the Bill and Melinda Gates within their undertakings to grow, and to find themselves in each other, while they continue to be productive to the business.”

These are Justice James Rika’s words in the judgement of a case involving Mark Ngugi Mwaura, a former G4S Kenya Regional Operations Manager, who challenged his termination. Accused of sexual harassment and improperly transferring his subordinate, Anne Mukami, Mwaura maintained that their relationship was consensual. A DNA test disproved Mukami’s paternity claim, and the court ruled in his favour, declaring his dismissal unjust and awarding him KSh 3.2 million in compensation.

The ruling quickly became the focal point of discussions on social media, with workplace romance—a common yet sensitive topic in corporate environments—taking centre stage. Many hailed the decision as a “landmark case” that was long overdue, sparking a fresh debate on the complexities of relationships in the workplace.

However, a more conservative perspective argues that employers should be cautious about condoning workplace romance. Proponents of this view raise legitimate concerns, including the risk of conflicts of interest, particularly in supervisor-subordinate relationships. They warn of a rise in sexual harassment claims, workplace friction, and the possibility of strained relationships leading to a toxic environment. These issues could ultimately push disgruntled lovers to abandon their jobs, which can have a negative impact on productivity.

This underscores the complexity of workplace romance and why it remains a divisive issue among employers and employees alike.

While both schools of thought raise valid points, Justice Rika, who characterised the claimant as “a lovesick man rather than a sexual harasser”, adopted what some would call a more ‘progressive’ stance on workplace relationships. But what drove the court to take such a liberal view of romantic relationships in the workplace?

Misunderstanding of sexual harassment

While acknowledging the definition of sexual harassment under Section 6 of the Employment Act 2007 —which broadly refers to “unwelcome behaviour, physical contact and advances; sexual favours; and other verbal and non-verbal conduct of a sexual nature that is unwelcome to the other person”—Justice Rika stressed that employers must not confuse consensual romantic relationships with sexual harassment. He emphasised that not all workplace relationships qualify as harassment, and in Mwaura’s case, the company wrongfully categorised his consensual relationship as inappropriate.

Instead of deeming such relationships inherently problematic, the court acknowledged them as a natural part of human interaction, emphasising that a consensual romance should not be automatically viewed as misconduct unless it crosses into unwanted or coercive behaviour.

Violation of human rights

The court took a bold stance, labelling anti-romance policies in the workplace as “unconstitutional”. Justice Rika’s perspective was that strict bans or overly intrusive regulations on workplace relationships infringe upon employees’ rights to privacy and dignity, as protected under Articles 31 and 28 of the Constitution. These provisions safeguard individuals from unnecessary intrusion into their private lives and ensure their inherent dignity is respected.

Justice Rika emphasised that romantic relationships between employees are a matter of personal freedom, enshrined in the Constitution. The judgement went even further, stating that prohibiting employees from pursuing consensual romantic relationships would amount to “cruel, inhuman, or degrading treatment”, a violation of Article 25(a) of the Constitution. This reinforced the court’s view that personal relationships, when consensual, should not be policed by employers, and any such attempts would be a gross infringement on personal rights.

In essence, the court’s view can be seen as progressive because it does not seek to police natural human interactions but rather focuses on maintaining a balance between personal freedoms and professional integrity.

What does this mean for employers?

According to Section 3 of the Judicature Act, judicial precedent is a recognised source of law in Kenya. This means that employers must now navigate this new legal direction regarding workplace relationships. The recent decision sets a significant precedent, forcing employers to reconsider how they handle romantic relationships within their organisations.

Employers are now required to tread carefully when regulating romantic relationships in the workplace. Policies that outrightly ban or excessively monitor such relationships may not withstand legal scrutiny, as the court has deemed them invasive and unconstitutional. Employers must ensure that their workplace policies align with constitutional protections for privacy and dignity.

How far should employers regulate?

While employers are responsible for maintaining a professional and safe work environment, they must avoid crossing into unconstitutional territory. Employers should focus on addressing issues that could harm the workplace, such as harassment, favouritism, and conflicts of interest, rather than policing personal relationships. Policies may include provisions for disclosure of relationships that could present a conflict of interest, but they should avoid blanket bans on workplace romance.

Conclusion

Employers should carefully review their sexual harassment policies to strike a balance between preventing harassment and respecting employees’ rights. The key is ensuring that any policy addresses abuse of power, quid pro quo harassment, and conflicts of interest without overstepping into the private lives of employees. The court suggests that relationships, if consensual, should not automatically be equated with misconduct.