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ELRCPartially AllowedNot stated in judgment

Bajaber v Planning Systems Services Limited (Cause E871 of 2021) [2024] KEELRC 1462 (KLR)

Employment and Labour Relations Court
14 June 2024
2,616 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling by James Rika, J of the Employment and Labour Relations Court at Nairobi on a Notice of Application dated 21st November 2023 filed by the Respondent in a discrimination claim by the Claimant. The Respondent sought expungement of the Claimant's documents at pages 7 to 13 (exhibit 'TAS 20') — annual leave records of the Claimant's former colleagues Vicky Awiti, David Mugo and Mumo Musava — arguing that their use violated the data subjects' constitutional right to privacy and the Data Protection Act 2019, and the Claimant's duty of confidentiality under the Stafi Handbook. The Respondent also sought leave to file a supplementary bundle comprising the Stafi Policy Handbook and bank instructions evidencing a payment of Kshs. 150,589 to the Claimant. The Claimant opposed, contending the documents were admissible comparators' evidence under Section 107 of the Evidence Act, that the Handbook was always available to the Respondent, and that the payment was reversed. The Court held that discrimination claims require comparators' evidence; annual leave records are not biometric, health or sensitive personal data and their exhibition causes no harm. Consent was unnecessary under Sections 30(1)(b)(ii), 30(1)(b)(vii), 45(c)(i) and 51(2) of the Data Protection Act, given the employer's legal obligation to comply with anti-discrimination law and the data subjects' status as the Respondent's own witnesses and principal officers. Applying Leland I Salano v Intercontinental Hotel and Quinlan v Curtis-Wright Corporation, the Court found no breach of confidentiality as no trade secrets or restricted access were shown. The expungement prayer was declined; leave to file the supplementary bundle was granted and the bundle deemed duly filed and served. Costs were in the cause. Judgment delivered electronically on 14th June 2024.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimant's exhibition of the annual leave records of his former colleagues (the data subjects) violates the data subjects' right to privacy under the Constitution and the Data Protection Act 2019
  2. 2.Whether the Claimant's production of the documents breaches his duty of confidentiality under the Respondent's Code of Conduct in the Stafi Handbook
  3. 3.Whether the Respondent should be granted leave to file a supplementary bundle of documents and have it deemed duly filed and served

Key legal issues

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Admissibility of data subjects' annual leave records as comparators' evidence in a discrimination claim

Holding

The objection was not well-founded; the annual leave records are admissible and integral to establishing workplace discrimination.

Reasoning

Discrimination claims require comparators' evidence. The annual leave records are not biometric, health or sensitive personal data incapable of harming the data subjects. The Data Protection Act permits processing without consent where necessary to establish, exercise or defend a legal claim, or where required by law or court order. The data subjects are the Respondent's own witnesses and principal officers, aware of and able to dispute the data in oral evidence. No breach was reported to the Data Commissioner, indicating no real risk of harm.

p. 3
02

Whether use of the data subjects' data required their consent under the Data Protection Act 2019

Holding

Consent was not necessary under Sections 30(1)(b)(ii) and 30(1)(b)(vii), and use is permitted under Sections 45(c)(i) and 51(2).

Reasoning

Section 30(1)(b)(ii) exempts processing for compliance with a legal obligation, including the employer's constitutional and statutory anti-discrimination obligations. Section 30(1)(b)(vii) covers legitimate interests absent unwarranted harm to the data subject, Section 45(c)(i) permits processing for establishment, exercise or defence of a legal claim, and Section 51(2) exempts disclosure required by law or court order.

p. 3
03

Whether the Claimant breached his duty of confidentiality under the Respondent's Stafi Handbook

Holding

He did not; the leave records were neither trade secrets nor restricted confidential information.

Reasoning

Confidentiality clauses protect business secrets. Following Leland I Salano v Intercontinental Hotel and the Quinlan case relied on therein, confidential information acquired in service may be used unless it is a trade secret or equivalent. There was no evidence of restricted access or passwords, and the Claimant held a senior management role from which broad human resource information access would be expected.

p. 5
04

Whether the Respondent should be granted leave to file a supplementary bundle of documents

Holding

Leave granted and the bundle deemed duly filed and served.

Reasoning

Rule 14 of the ELRC Procedure Rules 2016 empowers the Court to allow filing of supplementary documents after closure of pleadings. The Stafi Handbook defined the parties' relationship and was referred to in the Statement of Claim, so the Claimant suffers no prejudice. Any dispute over the Kshs. 150,559 payment and its alleged reversal can be resolved through the Claimant's evidence.

p. 5

Legal principles established

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  • An employee alleging workplace discrimination must produce comparators' evidence, and the Data Protection Act 2019 does not prohibit use of comparators' data for establishing discrimination at the workplace; consent of the data subjects is not necessary where the data is used in legal proceedings to enforce anti-discrimination obligations.
  • Confidential information acquired by an employee in the course of service may be used after service has ceased, unless it is a trade secret or so confidential as to require trade-secret protection.

Court orders

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  1. 1.Prayer [1] of the Respondent's Application dated 21st November 2023, seeking to strike out the Claimant's documents at pages 7 to 13 marked 'TAS-20', is declined
  2. 2.Prayers [2] and [3] of the Application seeking leave to file the supplementary bundle of documents dated 21st November 2023, and deeming the bundle as duly filed and served, are granted
  3. 3.Costs in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 3 of the Employment and Labour Relations Court Act; Employment and Labour Relations Court [Procedure] Rules, 2016

Relief refused

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Expunging of the data subjects' documents (pages 7-13 of the Claimant's documents, 'TAS-20') from the record

The evidence is comparators' evidence, integral to proving workplace discrimination; the annual leave records are not biometric, health or sensitive personal data, and their exhibition occasions no prejudice or harm to the data subjects; consent was not required under Sections 30(1)(b)(ii), 30(1)(b)(vii), 45(c)(i) and 51(2) of the Data Protection Act

p. 5

Costs

Costs in the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Data Protection Act 2019, does not prohibit use of comparators' data, for purposes of establishing discrimination at the workplace.
p. 2data protection and comparators' evidence
It is ordered: a. Prayer [1] of the Application filed by the Respondent, dated 21st November 2023, seeking to strike out the Claimant's documents appearing at page 7 to 13 of the Claimant's documents marked 'TAS -20,' is declined.
p. 5final orders - expungement declined
Prayers [2] and [3] of the Application seeking leave to file the supplementary bundle of documents dated 21st November 2023, and deeming the bundle as duly filed and served, are granted.
p. 5final orders - supplementary bundle
Costs in the cause.
p. 5costs
In claims where an Employee alleges discrimination at the workplace, he is required to give evidence of comparators, to show that he was treated difierently from the comparators.
p. 2comparators' evidence in discrimination claims

Issues in the judgment

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minor

Inconsistent figures for the payment: Kshs. 150,589 in one passage and Kshs. 150,559 elsewhere

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bajaber v Planning Systems Services Limited (Cause E871 of 2021) [2024] KEELRC 1462 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1462/eng@2024-06-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.