On 29 June 2023, the Employment and Labour Relations Court (ELRC) ruled on Scoline Anyango Ojung’a’s (the Claimant) case against Healthlink Matcare Ltd T/A Nairobi Women’s Hospital (the Respondent) for alleged unfair termination.

4 August 23

The Court’s decision has significant impact on employers and businesses as it: – (i) underscores the constitutional duty of employers to respect their employees’ religious beliefs since the court ruled that it is unjust and unlawful to place employees in a position where they must choose between their faith and their job; (ii) reinforces that termination must be founded on valid and substantive reasons that are justifiable within the given circumstances; (iii) highlights the potential illegality of work arrangements that restrict fundamental rights protected by the Constitution; (iv) underscored that it is unlawful for employers to require employees to use accrued leave days during a suspension since annual leave days are a statutory right granted to employees by the Employment Act; and (v) highlights the importance of clear policies and procedures within a company. The absence of a policy prohibiting the delegation of responsibilities weakened the Respondent’s position of lawful termination.

The Claimant, a Seventh-Day Adventist who observes Saturdays for worship, was a Hospital Manager until 5 April 2018. The Claimant and the Respondent agreed that she would work on the first Saturday of each month, reserving other Saturdays for worship, and compensating with Sunday shifts due to the hospital’s ongoing operations.

On 21 February 2018, the Respondent convened a budget approval meeting. However, the budget for one of the Respondent’s branches was not endorsed and needed adjustments. The Claimant and her team made the necessary changes, but due to her religious commitment, she delegated presenting the revised budget on Saturday, 24 February 2018, to a colleague, as it coincided with her worship day. Despite formally requesting to be excused on Friday, 23 February 2018, via email, citing her religious obligations, the Claimant’s request was denied by the Respondent. Nevertheless, she continued with her religious practice. Subsequently, on Thursday, 5 April 2018, the Respondent terminated her employment, alleging gross misconduct.

The Claimant contended that her termination based on her failure to work and present the final budget on 24 February 2018, was unfair, discriminatory, and infringed upon her religious freedoms as outlined in Articles 27 and 32 of the Constitution. She asserted that the denial of her request forced her into an unfortunate dilemma of choosing between her faith and her job.

In response, the Respondent argued that the Claimant’s right to practice her religion is not absolute and should be exercised in a manner that accommodates other responsibilities. It maintained that treating the Claimant differently owing to her faith would be unfair to other employees and that given her position in the organisation, she should have fostered a sense of responsibility to fulfil work duties promptly. The Respondent emphasised the significance of the budget-making process, particularly considering the Claimant’s role as the branch’s budget holder and contended that such a critical task should not have been delegated to another team member.

The central question before the court revolved around the lawfulness of the termination of the employment relationship between the parties.

Whether the Employment Relationship between the Parties was Lawfully Terminated
The Court, while acknowledging that freedom of worship is not absolute, held that its limitations must be reasonable and justifiable within the framework of a democratic society that values human dignity, equality, and freedom. The court noted that the Respondent’s budget committee, in scheduling a meeting on Saturday, 24 February 24, was aware that this conflicted with the Claimant’s day of worship. Given this awareness, the Claimant wasn’t required to voice an objection. Furthermore, the Respondent was constitutionally obligated to uphold the Claimant’s right to worship.

The court determined that the Respondent’s insistence that only the Claimant could present the budget statement during the meeting infringed upon Article 32 (4) of the Constitution, which prohibits coercing someone to act against their religious beliefs. The court found no evidence to support the reasonable and justifiable nature of any restriction on the Claimant’s freedom of worship, highlighting that both the Respondent’s budget process and the Claimant’s religious freedom held equal importance.

The court emphasised that it was the Respondent’s responsibility to strike a balance between its business interests and the Claimant’s religious freedom. In the court’s view, the Respondent could have adjusted the Claimant’s rest day to Saturday, aligning it with her worship day, considering her willingness to work on Sundays. In addition, the court criticised the Respondent for not honouring its agreement with the Claimant, as she had already worked on the first Saturday of February and should have been allowed to observe her worship on the remaining Saturdays.

Ultimately, the court held that the termination of the Claimant’s employment due to her absence at the meeting on her worship day was unlawful, discriminatory, and unfair. As a remedy, the court ordered compensation equal to the Claimant’s gross salary for 12 months which amounts to roughly KES 2.6 million (approx. USD 18,195), considering her lack of contribution to the harsh response by the Respondent.

In conclusion, the ruling signifies the courts’ readiness to examine employers’ actions to safeguard employees’ constitutional rights from unjust or undue limitations. It stresses the essential nature of upholding employees’ human dignity and their freedom of worship. The verdict also reinforces the necessity of employers having valid and substantive reasons before terminating an employment contract. Employers are now expected to navigate these implications, treating their employees with sensitivity and fairness while operating within the bounds of the law.

Should you have any questions regarding the information in this legal alert, please do not hesitate to contact, Rosa Nduati – Mutero and Faith Macharia.


1. Jackson Makori – Associate
2. Vianney Sebayiga – Trainee Lawyer