Division 1 of Part VI of the Employment Act (Chapter 373) contains three sections. The first creates rights; the other two impose restrictions.
Section 97 — discrimination prohibited
Subject to this Part, an employer who:
(a) discriminates against a female person on account of her sex; or
(b) fails to pay a female employee the same wages as a male employee employed at the same level in the same work,
is guilty of an offence. Penalty: a fine not exceeding K200.00.
Paragraph (a) is general: discrimination on account of sex, in any aspect of employment. Paragraph (b) is a specific equal-pay guarantee, and its test is the same level in the same work — not the same job title.
K200 is a small penalty, but the substantive consequence sits elsewhere. Under section 11(4), a term of a contract less favourable to an employee than a condition prescribed by the Act is void to the extent that it is less favourable. A wage below that of a male employee at the same level in the same work is a term less favourable than section 97(b) allows — and the shortfall is recoverable as unpaid wages under Part V.
Section 96 separately makes it an offence to contravene any provision relating to the payment of wages, with a fine up to K500.00.
The constitutional backdrop is section 55 of the Constitution — all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex — and the National Goals in the Preamble, which call for equal participation by women in all forms of economic activity.
Section 98 — heavy labour and underground work
(a) in heavy labour; or
(b) underground in any mine — except where she holds a responsible position and is not employed in manual work.
“Heavy labour” is not defined generally. Under section 5, the Minister may, by notice in the National Gazette, declare any kind of work to be heavy labour for the purposes of the Act. So the content of section 98(a) depends on what has been gazetted.
Where an employer says a role is closed under section 98(a), ask which National Gazette notice declares that work to be heavy labour. Absent a declaration, the paragraph has nothing to attach to.
Paragraph (b) has its own express exception for a woman holding a responsible position who is not employed in manual work — engineers, geologists, supervisors and managers underground.
Section 99 — employment during the night
Female persons shall not be employed between 6 p.m. and 6 a.m. in any industrial undertaking — other than those:
(a) holding responsible positions at a managerial or technical level;
(b) employed in health or welfare services; or
(c) employed in an undertaking in which only members of the same family are employed.
Two limits on the scope of the prohibition are worth noting. It applies only to an industrial undertaking — not to offices, shops, hotels, schools or health facilities generally. And the three exceptions are broad, covering managerial and technical roles and the whole of health and welfare services.
Under section 99(2) the Minister may, where in his opinion there is a national emergency or it is in the national interest, by notice in the National Gazette suspend the operation of the prohibition.
| Who | Restriction | Section |
|---|---|---|
| Female persons (with exceptions) | Not 6 p.m. to 6 a.m. in an industrial undertaking | 99(1) |
| Persons under 16 | Not 6 p.m. to 6 a.m. — no exception | 105(1) |
| Persons 16 or 17 | Not 6 p.m. to 6 a.m., except in a family undertaking | 105(2) |
Pregnancy, maternity and nursing
Sections 100 to 102 deal with pregnancy, maternity leave, nursing breaks and resumption of duty. They are covered in maternity leave. In summary: an employer that knows of a pregnancy shall not terminate the employment on grounds arising out of the pregnancy without the employee’s consent (except where she has been employed for fewer than 90 days); maternity leave covers hospitalisation before confinement and six weeks after, with up to four more weeks for post-confinement sickness; and a nursing mother is entitled to at least half an hour twice daily, counted as working hours, with no deduction from wages.
Related protections in the Act
- Section 13 — where a contract is terminated, the spouse’s contract with the same employer also terminates unless, within 48 hours, the spouse notifies the employer that it is to continue and the employer agrees. See kinds of contract.
- Section 36(2)(a)(v) — an employee who has been ill-treated may terminate the contract without notice.
- Section 120(3) — in a rural area, separate family accommodation must be provided for employees with accompanying dependants. See housing.
- Section 133 — fraud, intimidation, coercion or undue influence for employment purposes is an offence carrying a fine up to K500.00.
- Section 138 — it is an offence to refuse information reasonably required by an employee, or to penalise them for asking.
Sexual harassment, assault and sexual offences at work are dealt with by the Criminal Code Act (Chapter 262), and family and sexual violence by the Family Protection Act 2013. Section 6 of the Employment Act confirms that it does not relieve an employer of any duty or liability imposed by any other law.
If you are discriminated against or underpaid
- Establish the comparison — a male employee at the same level in the same work, and the difference in wages.
- Ask in writing for the rate and the basis for it. Refusing is an offence under section 138, as is penalising you for asking.
- Keep the pay statements and any roster or job description.
- Report it to a labour officer, and ask the Secretary to consider proceedings under section 145 — and to appear on your behalf under section 145(c).
- Claim the shortfall as unpaid wages, relying on section 11(4) to void the less favourable term.
- Consider the industrial route under the Industrial Relations Act.
- Get advice — the Public Solicitor, or a firm from the law firms directory.
Sources
- Employment Act (Chapter 373) — ss 5, 6, 11, 13, 36, 96, 97–102, 105, 120, 133, 138, 145; Part VI Division 1
- Constitution — s 55; Preamble (National Goals)
- Criminal Code Act (Chapter 262)
- Industrial Relations Act — PacLII 1986 Revised Edition
Before relying on anything here, read the current text of the Employment Act (Chapter 373) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.