MANAGING WORKPLACE DISCRIMINATION, HARASSMENT AND RETALIATION: AN ASSESSMENT OF KENYAN WORKPLACE

Purpose: This paper sought to examine whether workplace training in mitigating discrimination, harassment and retaliation has been effective. Methodology: This study adopted exploratory research methodology. Exploratory research design is used to investigate a problem which is not clearly defined. It is conducted to have a better understanding of the existing problem, but will not provide conclusive results. It explored studies conducted on the topic. This means that the study relied on desk-top review of the existing studies and documented case laws. Further, it relied on the cases laws. A narrative analysis was done and at this point the information was interpreted by comparing the findings with the findings of other empirical studies. This information was interpreted together with the ‘Stories within stories’ and related to the existing literature Findings: The results found that while workplace training increases sensitivity, it is associated with less accuracy in detecting discrimination, harassment, and retaliation. This is based on the fact that there are many cases on the matter before the courts. Further, the study shows that there is no relationship between training and the ability of the manager to propose the required response after the act. Unique contribution to theory, practice and policy: The study recommends that there is need for organizations to develop action plans that will measure the effectiveness of trainings. There is need to regularly review policies to ensure that they are modern realities such as online harassment. Finally the study recommends amendment of the current employment Act to exclusively require that employers must conduct training on the issues.

UNRAVELLING THE TRIANGLE: CLARIFYING THE EMPLOYMENT STATUS WITHIN OUTSOURCING TRIANGULAR EMPLOYMENT RELATIONSHIPS IN KENYA

Purpose: This paper aimed at unravelling the triangle by assessing the employment status of outsourced workers within outsourcing triangular employment relationships (TERs) in Kenya. Methodology: The study adopted desk research in which data was collected from relevant books, journal articles, government reports, legal commentaries, periodicals, relevant statutes, treaties and conventions on the current Kenyan legal framework and its underlying assumptions that pose challenges to outsourced workers. This paper is divided into three main sections. The first discussed the attribution of employment status under Kenya’s labour laws. Due regard was given to the statutory definitions and key judicial tests. The second part focused on the employment status of outsourced workers in outsourcing TERs. Though outsourced workers relate with two authority figures, namely the outsourcing company and the client enterprise, the law classifies the outsourcing company as the outsourced workers’ employer. The law does not define the relationship between the client enterprise and the outsourced workers which poses unique challenges to the workers. These are compounded when outsourcing TERs arise from the conversion of employees to outsourced workers. The third part identified measures to clarify employment status within outsourcing TERs. The paper underscores the importance of clarifying the employment status within outsourcing TERs. Findings: It was found that current law on employment status envisages standard employment relationships (SERs) but does not adequately cater for outsourcing TERs. It classifies the outsourcing company as the outsourced workers’ employer, and does not factor in that the client enterprise usually exercises day-to-day control over their outsourced workers’ activities. It was found that this poses unique challenges when there is transfer of employment from SERs to outsourcing, which may lead to employee misclassification. Unique Contribution to Theory, Practice and Policy: Adopting joint employee status in Kenya’s legal framework would enable placing some employer obligations on the client enterprise, even though it does not formally attach employer status on it. In addition, the express prohibition of sham arrangements and the limitation of outsourcing arrangements to non-core business activities would curb the use of outsourcing TERs to evade employment responsibilities through employee misclassification.

COMPLAINTS WHICH FOREIGN INVESTORS MIGHT BRING AGAINST HOST STATES DUE TO COVID-19 RESPONSE, AND THE DEFENCE HOST STATES MIGHT USE AGAINST THE COMPLAINTS

Purpose: This summative assignment sought to explore the possible complaints that foreign investors might raise against host states, as well as how host states might defend themselves from such complaints. Methodology: This being a summative assignment, the author relied on review of existing literature, reference to case law and reflective learning, as well as, critical thinking to provide a critical analysis to the question. Fundamentally, the author explored the international investment treaty standards that could be used by foreign investors to raise their complaints, as well as the treaty-specific exceptions that may inform the defences by host states in response to foreign investor claims. The researcher adopted a case study design through a qualitative content analysis technique towards analysis documented information in the form of case laws, existing research literature, constitutional reports, such as international investment arbitration reports and agreement. Findings: First and foremost, the author found out that foreign investors might complain about the violation of the full protection and security standard. However, states might invoke the doctrine of force majeure to defend against such claims. Also, the author found out that foreign investors might complain about unfair and inequitable treatment insofar as imposing Covid-19 measures are concerned. Nevertheless, host states might rely on the defence of distress to counter any complaints that may be brought about by foreign investors. Finally, the author explored the potential complaints insofar as direct and indirect expropriations are concerned, which hosts states may defend themselves against through the provisions of the defence of necessity as well as the defence of public health. Unique contribution to theory, policy and practice: The author recommends that host states and foreign investors need to strike a balance between the protection of investments and public interests.