On 17th April 2024, the Employment and Labour Relations Court of Kenya delivered an interesting judgment at the intersection of labour law and the Constitution (The Forum for Good Governance and Human Rights vs Teachers Service Commission and Ors.). At issue was the fact that the Teachers Service Commission (a statutory body) had engaged a number of instructors that it called “intern teachers.” “Intern teachers” were engaged on non-renewable eleven-month contracts (as opposed to permanent teachers, who were also entitled to pensions). Their status, therefore, was not that of employees, but that of contractual workers, and they were paid allowances instead of salaries. The State justified this by arguing that this was meant to “benefit young persons entering the job market.” (paragraph 4)
In a terse judgment, the ELRC held that the practice of recruiting “intern teachers” on a contractual basis was illegal and unconstitutional. The core of the Court’s argument was that the so-called “intern teachers” were duly qualified and trained; consequently, classifying them as interns was an attempt by the State to “escape the inescapable effect of the employment relationship and legal safeguards.” (paragraph 8(b)). Importantly, the Court drew upon Article 41 of the Kenyan Constitution (the guarantee of fair labour practices) to hold that the prerogative of the employer to “define the models of the terms and conditions” of work was subject to the requirements of Article 41. In this case, the evidence – which included both the nature of the work and the qualifications of the “intern teachers” – demonstrated that the objectives of classifying them as “intern teachers” was indeed the evasion of labour law obligations. The Court buttressed this finding by referring to the International Labour Organisation’s famous Recommendation 198, which warned against “disguised employment relationships”, which masked an employee’s “true legal status,” and had the effect of depriving them of the legal safeguards that they were otherwise entitled to.
On its own, this finding would be unremarkable: the issue of disguised employment status (or “misclassification”, as it is popularly known) is well-known, and courts across jurisdictions have devised ways to address it by going behind the labour contract, in order to examine the true nature of the relationship in question. This has been particularly stark in the context of gig and platform work (see, e.g., the discussion of the UK Supreme Court in Uber vs Aslam for an example). What is interesting, however, is the Court’s anchoring of its interpretation of labour law within Article 41 of the Constitution (and, relatedly, within Article 27 as well, which sets out the guarantee of non-discrimination). Recall that last year, the ELRC had done something similar when examining the obligations of Meta towards its content moderators, and holding that Meta could not outsource its obligations to local, third-party contractors (see here).
Let us call this “workplace constitutionalism.” We can understand workplace constitutionalism as an approach where the Constitution informs the interpretation and evolution of labour legislation, and where the latter is understood in light of constitutional norms (see e.g. Chapter Six of this author’s PhD Thesis; Horizontal Rights: An Institutional Approach). The merit of workplace constitutionalism is that it brings in autonomous constitutional concepts (such as equality and non-discrimination, structural differences in power, and so on) to bear upon the labour contract, and its construction under labour law. With the Meta case, and now this case, we can see the ELRC beginning to incrementally build a jurisprudence of workplace constitutionalism.
The other interesting feature of the judgment is that at the very beginning of its analysis, the ELRC holds that interns are “employees” for the purposes of labour law. It does so by citing its own precedent from 2021, and considering the definition of “employee” under section 2 of the Kenyan Employment Act, which defines “employee” as including “apprentice” and “indentured learner.” It holds that the definition is wide enough to include “learners” who learn by hands-on experience or technical training someone experienced in the field (the classical understanding of “intern”). While the Court does not go further with this, as its focus is on the holding that the teachers were misclassified as interns, nonetheless, a finding that interns are “employees” and therefore entitled to labour law safeguards is certainly revolutionary (and very much in line with the understanding of workplace constitutionalism, as discussed above). It will be important to see if this is taken forward further, in other cases involving “interns” in other professions.
Finally, the Court’s remedy is somewhat disappointing, as it refuses to order the regularisation of the “intern teachers” or the payment of back-wages, stopping only at holding the contracts to be illegal (presumably, the statutory authority will now have to re-hire individuals against existing vacancies, on the same terms as it engages permanent teachers). In my view, this was a fit case for regularisation and the payment of back-wages; however, that said, the reasoning of the Court is undoubtedly important, and adds another brick to the foundations of workplace constitutionalism in Kenya.
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