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ELRCPartially Allowed

Gatobu v Tullow Oil Kenya Limited (Cause E964 of 2021) [2025] KEELRC 1786 (KLR)

Employment and Labour Relations Court of Kenya
18 June 2025
8,182 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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Tullow was ordered to pay an employee over Kshs 11 million after a Kenyan court found her UK assignment was discriminatory and her dismissal unfair.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Human Resource Advisor from 1st March 2012 and later promoted to Senior Human Resource Business Partner, was seconded on a short-term assignment to the Respondent's UK office in April 2016, relocating with her two children as sole caregiver. Her assignment was serially extended until she returned to Kenya on 28th April 2018. She claimed she was discriminatorily treated on single-assignee terms (per diem of £50, no assignment uplift, no COLA, salary paid in Kenya Shillings), that on return she was assigned a facilities-heavy role mismatched to her skills, and that after failed mutual separation talks she was subjected to a sham disciplinary process and summarily dismissed on 2nd November 2018 for downloading files to a non-Tullow USB. The Respondent maintained she accepted short-term terms, received generous exceptions, and was lawfully dismissed for gross misconduct. The Court found that the cumulative short-term assignments resulted in a long-term posting, that the Respondent's witnesses could not justify the failure to convert the assignment, and that the Claimant was discriminated against in her deployment and payment terms. It also found the termination unfair and unlawful, noting the abrupt shunting out of employment with paltry final dues. The Court declared the termination unfair and unlawful, awarded 12 months' compensation of Kshs. 7,145,980/-, Kshs. 4,000,000/- for discriminatory employment practices, accrued per diem, assignment uplift, COLA, £400 monthly transport allowance, and two months' salary as relocation costs, with interest on default and costs of the suit. The claims for forex loss damages and the prorated share award were not granted.

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 short-term assignment to the UK should have been converted to a long-term assignment and whether the terms applied to her amounted to discrimination
  2. 2.Whether the Respondent constructively dismissed the Claimant upon assigning her a facilities-heavy role on return to Kenya
  3. 3.Whether the termination of the Claimant's employment on account of gross misconduct (downloading files to a non-Tullow USB) was fair, lawful and procedurally sound
  4. 4.Whether the Claimant is entitled to withheld/accrued per diem, assignment uplift, Cost of Living Allowance, transport allowance, relocation costs and general damages for forex loss
  5. 5.Whether the Claimant is entitled to compensation of 12 months' salary and damages for discriminatory employment practices

Key legal issues

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01

Discrimination in the terms of the UK assignment

Holding

The Court found the Claimant was discriminated against in her deployment terms, being assigned single status though she relocated with her two children, and awarded Kshs. 4,000,000/-. A short-term assignment that cumulatively exceeded the long-term threshold could not be justified as short-term.

Reasoning

The Court reasoned that the Respondent's witnesses could not explain why the periodically extended short-term assignment was not converted to a long-term one, since the extensions pushed the term beyond the long-term threshold. Relying on section 5 of the Employment Act, Article 27 of the Constitution and international instruments (ICESCR, CEDAW, UK Equality Act 2010), it held that according the Claimant single-assignee terms while she relocated with her children, and paying her in Kenya Shillings in London, constituted discriminatory treatment warranting damages.

p. 14
02

Unfair and unlawful termination

Holding

The termination on grounds of gross misconduct was declared unfair and unlawful, and the Claimant was awarded the maximum 12 months' compensation.

Reasoning

The Court observed that the Respondent had commenced mutual separation discussions, and when those failed, initiated a disciplinary process over the Claimant's use of an unauthorised USB to retrieve her personal data, culminating in summary dismissal with only paltry final dues of Kshs. 249,000/-. The Court characterised the process as shunting the Claimant out of employment, found the termination unfair and unlawful, and exercised its discretion under section 49 of the Employment Act to grant 12 months' compensation.

p. 14
03

Entitlement to assignment benefits (per diem, uplift, COLA, transport, relocation)

Holding

The Court ordered the Respondent to compute and pay accrued per diem, assignment uplift, COLA, £400 monthly transport allowance and two months' salary as relocation costs.

Reasoning

The Court found the Respondent's witnesses unable to justify the periodic extensions or the denial of long-term benefits. It treated the Claimant as having served on terms that should have been those of a long-term assignee, and awarded the withheld benefits accordingly, with interest at Court rates should they remain unpaid after 30 days.

p. 13

Legal principles established

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  • Treatment of employees facing the same circumstances differently constitutes discrimination
  • A short-term assignment that is serially extended beyond the long-term threshold cannot be treated as short-term for benefits purposes

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment on alleged account of gross misconduct amounted to unfair and unlawful termination of employment
  2. 2.12 months' compensation for the unlawful and unfair termination of employment amounting to Kshs. 7,145,980/-
  3. 3.The Respondent to compute and pay the Claimant's withheld and/or accrued per diem due on account of a Long-Term UK Contract
  4. 4.The Respondent to pay Assignment uplift for the UK assignment
  5. 5.The Respondent to pay the Claimant's Cost of Living Allowance while in the United Kingdom (COLA)
  6. 6.The Respondent to pay the Claimant the Transport Allowance amount of £400 per month for the duration of her UK assignment
  7. 7.Relocation costs constituting the Claimant's two months' salary
  8. 8.Kshs. 4,000,000/- in favour of the Claimant against the Respondent for discriminatory employment practices
  9. 9.Interest at Court rates from the date of judgment till payment in full on the sums in (b) to (g) should they remain unpaid after 30 days
  10. 10.Costs of the suit to the Claimant

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations dispute; not expressly quoted in the judgment)

Relief refused

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General damages for forex loss following payment of salary in Kenya Shillings instead of Pounds

Not included among the remedies the Court awarded in the disposition

Damages for unfair labour practices and violations (as a distinct head)

Subsumed in the awards made; no separate damages for unfair labour practices were granted

Shares in merit and performance prorated at Kshs. 3,050,000/-

Not awarded; the Respondent had raised the exclusive jurisdiction of the Courts of England and Wales under clause 14.9 of the Employee Share Award Plan and the lapse of awards upon summary dismissal under clause 10.3

p. 7

Costs

Costs of the suit awarded to the Claimant

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.

Treatment of employees facing the same circumstances difierently is considered outright discrimination.
p. 14discrimination
In short shrift the Claimant was shunted out of her employment and was to be paid a paltry Kshs. 249,000/- as her final dues.
p. 14unfair termination
It is trite law that the best interests of a minor are to secure the most favourable outcome and it would have been cruel for the Respondent to expect the Claimant who was the primary care giver of her children to relocate to the United Kingdom without her children.
p. 14best interests of the child in employment decisions
A declaration that the termination of the Claimant’s employment on alleged account of gross misconduct amounted to unfair and unlawful termination of employment.
p. 14final orders - declaration
12 months compensation for the unlawful and unfair termination of employment amounting to Kshs. 7,145,980/-.
p. 14final orders - compensation
Kshs. 4,000,000/- in favour of the Claimant against the Respondent for discriminatory employment practices.
p. 15final orders - damages for discrimination
Should the sums in b) c) d) e) f) and g) remain unpaid after the expiry of 30 days, interest to run on the sums at Court rates from the date of judgment till payment in full.
p. 15final orders - interest

Issues in the judgment

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minor

The judgment does not state the cause number, the full name of the Claimant, or a neutral citation; the coram gives only the judge's name and title.

minor

Internal inconsistencies in dates: the dismissal appeal date is given as 23rd November 2018 in the claim but 28th November 2018 in the Court's summary; extension letters dated 24th November 2016 and 15th May 2017 are described as running from 1st January 2017 to 30th June 2017 and 31st December 2017 respectively.

material

The judgment does not rule on the Respondent's objection to jurisdiction over the share award claim of Kshs. 3,050,000/-, and that head is neither granted nor expressly dismissed.

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, "Gatobu v Tullow Oil Kenya Limited (Cause E964 of 2021) [2025] KEELRC 1786 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1786/eng@2025-06-18

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