Sexual harassment can make employees feel unsafe at work, affect their performance, and destroy trust in management. If it continues unchecked, the business may also face resignations and legal action.
A poor response can worsen the situation. Without clear reporting channels and a fair process, the employer may mishandle the complaint and cause further harm to everyone involved.
This guide explains what qualifies as sexual harassment under Kenyan employment law and how HR should prevent and handle complaints.
What Counts as Sexual Harassment in the Workplace?
Sexual harassment is not limited to physical contact. Under Section 6 of the Employment Act, it may involve:
- A request for sexual activity linked to favourable treatment, detrimental treatment, or an employee’s present or future employment
- Written or spoken language of a sexual nature
- Sexual images or other visual material
- Unwelcome or offensive physical behaviour that affects the employee’s work, performance, or job satisfaction
A manager offering a promotion in exchange for a sexual relationship is one example. Sexual remarks, unwanted messages, explicit images in a work group, inappropriate touching, or threats after an employee rejects an advance may also fall within the definition.
The Act specifically refers to conduct by an employer, a representative of the employer, or a co-worker. An organisation’s internal policy can go further by explaining how it will handle inappropriate conduct involving customers, contractors, suppliers, and other third parties.
Where Can Sexual Harassment Occur?
Sexual harassment can occur during business travel, staff events, client meetings, or through email and messaging platforms. The policy should explain where it applies and how employees can report conduct that occurs away from the usual workplace.
Some cases may also raise criminal issues. Section 23 of the Sexual Offences Act makes persistent, unwelcome sexual advances by a person in authority or someone holding public office an offence. The employer can investigate the workplace complaint and take disciplinary action, while the relevant authorities handle any criminal investigation or prosecution separately.
What Does Kenyan Law Require From Employers?
The Employment Act sets out which employers must have a sexual harassment policy and what that policy must contain.
Which Employers Must Have a Policy?
Section 6 of the Employment Act requires employers with at least 20 employees to issue a sexual harassment policy after consulting their employees or representatives. The policy must then be brought to the attention of everyone under the employer’s direction.
The 20-employee threshold applies to the formal policy requirement. Smaller employers should still establish a clear reporting and complaint-handling process. Without one, employees may not know where to raise concerns, and managers may respond inconsistently.
What Must the Policy Include?
A sexual harassment policy in Kenya must contain:
- The definition of sexual harassment set out in Section 6
- A statement that every employee is entitled to work free from sexual harassment
- A commitment by the employer to take steps to prevent it
- A statement that appropriate disciplinary measures will be taken
- An explanation of how employees can report complaints
- A commitment to protect the complainant’s identity and complaint details, except where disclosure is necessary for an investigation or disciplinary action
That final protection does not amount to complete secrecy. Employers should explain that information will be shared only with people who need it to handle the complaint fairly.
Meeting the statutory requirements is only one part of HR compliance. To make the policy workable, it should also provide alternative reporting channels, prohibit retaliation, explain the investigation process, address conflicts of interest, and set out how records will be handled.
How Should HR Handle a Sexual Harassment Complaint?
The first response matters. An employee who is blamed, not taken seriously, or immediately questioned about why they waited to report may decide not to continue. HR must make the process clear without deciding the outcome in advance.
Receive and Record the Complaint
At this stage, HR needs to understand and document the complaint, not decide whether it is true. Ask the employee what happened, when and where it occurred, who may have witnessed it, and whether any messages, documents, or other evidence exist.
A verbal report should be enough to begin the process; HR can put it in writing and ask the employee to confirm its accuracy.
Depending on the circumstances, the employer may need to limit contact between the parties or change reporting arrangements while the matter is examined. Any temporary measure should be proportionate and should not leave the complainant feeling penalised for speaking up.
Investigate Fairly
An investigation will not be credible if the person leading it is closely connected to either party or has an interest in the outcome. Where the complaint involves an owner, senior manager, or member of HR, someone outside the usual reporting line may need to handle it.
During the investigation:
- Preserve relevant messages, emails, CCTV footage, access records, and other available evidence.
- Interview the complainant, the person accused, and relevant witnesses separately.
- Give the person accused enough information to understand and answer the allegation.
- Limit disclosure of personal information to what the investigation requires.
Some complaints will have no witnesses or clear written record. That does not make them false. Compare the accounts with the available records, messages sent around the time, subsequent conduct, and any other evidence that could help establish what happened.
Act on the Findings
Once the evidence has been reviewed, the employer must decide whether the allegation is supported. The matter may be closed, referred for further inquiry, addressed through corrective measures, or taken into a disciplinary process.
Where the findings lead the employer to consider termination or summary dismissal, Section 41 of the Employment Act requires the employee to be told the reason and given an opportunity to respond. They are also entitled to have another employee or a shop-floor union representative present.
The employee facing disciplinary action should receive the outcome and details of any available appeal procedure. The complainant should also be told that the matter has concluded, without unnecessary disclosure of personal or disciplinary information.
Watch for Retaliation
Retaliation can begin as soon as a complaint is made and continue after the investigation ends. The complainant or witnesses may face threats, exclusion, unfavourable transfers, or pressure to change their account. HR should monitor how they are treated and address any retaliatory conduct promptly.
How Can Employers Prevent Sexual Harassment?
Employers can reduce the risk of sexual harassment by:
- Defining unacceptable conduct with examples covering conversations, messages, work travel, and staff events
- Training employees to recognise harassment and managers to respond when they witness inappropriate behaviour
- Examining situations where authority can be abused, including recruitment, performance reviews, promotions, late shifts, and business travel
- Addressing sexual remarks, unwanted advances, and other warning signs early
- Providing reporting channels that employees can use without approaching the person involved
- Applying the same standards to junior employees, senior managers, and high performers
Prevention becomes difficult when inappropriate conduct is excused as humour or tolerated because the person responsible is valuable to the business. Consistent action shows that the organisation’s standards apply to everyone.
When Can Outsourced HR Support Help?
External support may be useful when a complaint cannot be handled fairly or independently within the business. This may happen when:
- The company has no experienced internal HR lead
- A senior manager, business owner, or HR employee is named in the complaint
- Internal relationships could affect objectivity
- The organisation has no clear policy or complaint procedure
A provider offering HR outsourcing in Kenya can review policies, organise relevant records, guide managers through the complaint process and, where necessary, support disciplinary documentation. This gives the business experienced support when that capability is not available internally.
The employer remains responsible for the process and final decision. Outsourced HR support should help the company act fairly and consistently, and not justify an outcome management has already chosen.
Prevent Sexual Harassment and Respond Fairly
Employees should be able to work without sexual harassment and raise concerns without fear of retaliation. Employers need to address inappropriate conduct early, investigate complaints fairly, and apply the same standards regardless of who is involved.
If your business needs help preventing sexual harassment or handling a workplace complaint, contact Bridge Talent Group. We offer HR advisory services and support with employee relations, disciplinary matters, and workplace conflict.
Frequently Asked Questions
Must an Employer With Fewer Than 20 Employees Have a Sexual Harassment Policy?
Section 6 makes a formal policy mandatory for employers with at least 20 employees. Smaller employers are not subject to that express requirement, but a written policy gives employees a clear reporting route and managers a process to follow.
Can an Employee Make a Verbal Complaint?
Yes. The Employment Act does not prescribe one format for reporting complaints. HR can record a verbal report and ask the employee to confirm the account, but the lack of an initial written statement should not prevent the employer from responding.
What If the Complaint Is Against the Employee’s Manager?
The employee should be able to report to someone outside that manager’s authority, such as HR, senior management, a designated officer, or an external HR provider. The person named in the complaint should have no control over how it is investigated.
Can Sexual Harassment Lead to Summary Dismissal?
Potentially. The seriousness of the conduct and the available evidence will determine whether summary dismissal is justified. The employer must establish what happened and follow a fair disciplinary process before reaching that decision.
Should an Employer Report Sexual Harassment to the Police?
Not every complaint involves a criminal offence. Where the conduct may fall under the Sexual Offences Act, the affected employee may report it to the police. The employer can preserve relevant evidence and continue its workplace process separately without attempting to determine criminal guilt.
