A Kenyan employment court has made a ruling that will make a lot of HR managers sit up. Removing an employee from workplace WhatsApp groups can constitute constructive dismissal and unlawful discrimination.
The case involved Fidelis Wambui, a customer service officer who had worked at Hallmark Marketing Limited since 2016. In early 2021, she developed pregnancy-related complications and went on medically recommended bed rest.
She informed her employer and later requested an additional 28 days of leave. Within two days of that request, the company put her on indefinite unpaid leave, citing Covid-19 and financial pressure from lost client contracts.
Four days after that, she was booted from all 21 of the company’s work WhatsApp groups and had her email access revoked.
The Employment and Labour Relations Court found that sequence damning. Wambui asked for extended leave on April 13. She got the unpaid leave notice on April 15. She was cut off from every work communication channel on April 19.
The court wasn’t buying the Covid-19 restructuring story, largely because the company couldn’t produce a single redundancy notice, staff-wide communication, or meeting minute to back it up.
According to Business Daily, Hallmark Marketing argued that its business depended on client contracts, that it had actually lost a major one with Githunguri Dairy Farmers Co-operative Society, and that Wambui had prior performance issues.
The company also questioned whether her medical documents were authentic and pointed to its female-majority workforce as evidence it wasn’t discriminating against pregnant women.
The court dismissed most of that. On the question of her employment type, the company tried to characterize her as a fixed-term or agency worker, but the court noted she had been receiving a consistent salary for five years with no written contract to the contrary, and under Kenya’s Employment Act, that means she was a permanent employee entitled to proper terms.
The bigger legal point came down to what cutting her off from WhatsApp groups and email actually meant. The court ruled that removing an employee from all work platforms during authorized sick leave is a “repudiatory breach” of the employment contract or, essentially, a signal from the employer that it no longer considers itself bound by the relationship.
That’s constructive dismissal: you don’t hand someone a termination letter, but you make the job untenable enough that they have no real choice but to leave.
READ: Kenya High Court Confirms WhatsApp Texts Are Legally Binding
Beyond employment law, the court found constitutional violations too. Kenya’s constitution protects the right to equality (Article 27), dignity (Article 28), freedom from inhuman treatment (Article 29), and fair labor practices (Article 41).
The court ruled that what Hallmark did, isolating a pregnant woman from her workplace while she was sick and losing a pregnancy, crossed into each of those areas.
Wambui walked away with KES 4.4 million in total. That covered one month’s salary in lieu of notice, unpaid house allowance for 61 months (she never received it throughout her employment), unpaid leave pay, service pay, and 12 months’ salary for unfair termination.
An additional KES 3 million was added specifically for the constitutional violations, which the court described as “egregious” given the personal suffering involved.
The practical takeaway for employers is how you treat someone during sick leave, including on digital platforms such as WhatsApp (if it constitutes an official work platform), is part of the employment relationship, and courts will look at the timing and pattern of those actions when deciding whether discrimination was the real motive.
