Sexual harassment policy in Kenya: is it mandatory, and what must it contain

Yes, for many employers. Section 6(2) of the Employment Act, 2007 requires every employer with twenty or more employees to issue a policy statement on sexual harassment, after consulting employees or their representatives. Section 6(3) then lists six things the policy must contain, and section 6(4) requires you to bring it to every worker's attention.

This guide sets out exactly what section 6 says, who it applies to, and a plain sample outline you can adapt.

Who must have a sexual harassment policy

The duty is triggered by headcount. Section 6(2) reads: "An employer who employs twenty or more employees shall, after consulting with the employees or their representatives if any, issue a policy statement on sexual harassment."

Three points follow from that wording:

1. Twenty is the threshold. An employer with 19 staff has no statutory duty to issue the policy. An employer with 20 does.
2. Consultation comes first. You cannot simply download a template and circulate it. You must consult your employees, or their representatives if they have any, before you issue it.
3. The protection applies to everyone. The definition of sexual harassment in section 6(1) protects employees of all employers, whatever their size. A small firm without a policy is still exposed if harassment happens.

If your headcount moves around the 20 mark, issue the policy anyway. It costs little and removes the doubt.

How section 6(1) defines sexual harassment

Under section 6(1), an employee is sexually harassed if the employer, a representative of the employer, or a co-worker:

• directly or indirectly requests sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express promise of preferential treatment in employment, a threat of detrimental treatment in employment, or a threat about the employee's present or future employment status;
• uses language, written or spoken, of a sexual nature;
• uses visual material of a sexual nature; or
• shows physical behaviour of a sexual nature which directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee and that by its nature has a detrimental effect on the employee's employment, job performance or job satisfaction.

Note that co-workers are covered, not only managers. Your policy has to deal with peer conduct as well as abuse of authority.

What section 6(3) says the policy must contain

Section 6(3) allows the policy to "contain any term the employer considers appropriate". It then lists what it "shall contain". There are six required items.

Section 6(4) adds a seventh duty that sits outside the document itself: "An employer shall bring to the attention of each person under the employer's direction the policy statement required under subsection (2)."

A sample sexual harassment policy outline for Kenya

The outline below is a starting template. Each numbered heading maps to one requirement of section 6, in the same order. Sections 7 and 8 are optional additions that many employers find useful; section 6 does not require them.

[Organisation name] Sexual Harassment Policy Statement

Issued under section 6 of the Employment Act, 2007. Date issued: [date]. Consultation: [how employees or their representatives were consulted, and when].

1. What sexual harassment means (s.6(3)(a)). Quote the section 6(1) definition in full. Do not narrow it. You may add plain examples below the legal text, such as unwanted comments on someone's body, sexual jokes in a WhatsApp work group, or a supervisor hinting that a promotion depends on a date.

2. Your right (s.6(3)(b)(i)). "Every employee of [Organisation] is entitled to employment that is free of sexual harassment."

3. Our commitment (s.6(3)(b)(ii)). "[Organisation] will take steps to ensure that no employee is subjected to sexual harassment." List the steps you will actually take, for example induction briefings, annual training and manager guidance.

4. Consequences (s.6(3)(b)(iii)). "[Organisation] will take such disciplinary measures as it deems appropriate against any person under its direction who subjects any employee to sexual harassment." Link this to your disciplinary procedure.

5. How to raise a complaint (s.6(3)(b)(iv)). Name at least two routes, so that nobody has to report to the person they are complaining about. For example: the HR Manager, Ms Achieng Otieno, or a second named officer such as the Finance Director, Mr Kiprono Rotich. Give their email and phone. Explain what happens after a complaint is made.

6. Confidentiality (s.6(3)(b)(v)). "[Organisation] will not disclose the name of a complainant or the circumstances related to the complaint to any person, except where disclosure is necessary for the purpose of investigating the complaint or taking disciplinary measures."

7. Optional: no retaliation. A statement that nobody will be punished for making a complaint in good faith or for acting as a witness.

8. Optional: review. When the policy will next be reviewed, and who owns it.

Communication (s.6(4)). Record how the policy is brought to each person's attention: induction pack, signed acknowledgement, staff noticeboard, intranet, and refresher training.

Adapt this outline to your organisation. Check it against your contracts, your disciplinary procedure and any collective agreement, and have it reviewed by an advocate or a qualified HR professional before you issue it.

Five steps to put the policy in place

1. Count your employees. If you have 20 or more, the duty applies. If you are close, plan as if it applies.
2. Draft against section 6(3). Use the table above as a checklist. Every one of the six items must be in the document.
3. Consult. Share the draft with staff or their representatives, such as a union branch or staff welfare committee. Give a reasonable time for comments. Keep the minutes or emails.
4. Issue and communicate. Sign and date the final version. Brief every person under your direction, including new joiners. Collect acknowledgements.
5. Make it work in practice. Train managers on how to receive a complaint. Make sure complaint routes are real and staffed. Review the policy when your structure changes.

Common gaps HR teams find

• A rewritten definition. Some templates use foreign wording that is narrower than section 6(1). Keep the Kenyan statutory definition.
• One complaint route only. If the only route is the line manager, a complaint against that manager has nowhere to go.
• No record of consultation. The policy may be well drafted, but section 6(2) also requires consultation before issue.
• Policy on file, not in use. Section 6(4) requires communication to each person. A document nobody has seen does not meet that duty.

A written policy is the legal minimum. Staff also need to understand what the conduct looks like and how to report it. Nanto Academy offers a Kenya-specific online workplace conduct course that HR teams can use alongside their policy.

Sources

• Employment Act, 2007 (No. 11 of 2007), section 6, Kenya Law: https://new.kenyalaw.org/akn/ke/act/2007/11/eng

This guide explains the rules in general terms. It is not legal or tax advice for a specific case.

Is a sexual harassment policy mandatory in Kenya?

Yes, for employers with twenty or more employees. Section 6(2) of the Employment Act, 2007 says such an employer shall issue a policy statement on sexual harassment after consulting employees or their representatives. Smaller employers are not required to issue one, but the definition of sexual harassment in section 6(1) still protects their staff.

What must a sexual harassment policy contain in Kenya?

Section 6(3) lists six contents: the legal definition from section 6(1), the right to work free of harassment, the employer's commitment to prevent it, disciplinary measures against harassers, how to raise a complaint, and a confidentiality promise for complainants. The employer may add other terms it considers appropriate.

Do employees have to be consulted before the policy is issued?

Yes. Section 6(2) requires the employer to consult the employees or their representatives, if any, before issuing the policy statement. Keep a record of how you consulted, such as meeting minutes, a staff memo inviting comments, or correspondence with a union or staff committee, so you can show the step was done.

Does the policy cover harassment by a co-worker, or only by a manager?

Both. Section 6(1) covers conduct by the employer, a representative of the employer, or a co-worker. It includes requests for sexual activity linked to promises or threats about employment, sexual language, sexual visual material, and unwelcome physical behaviour of a sexual nature that harms the employee's work or job satisfaction.

Is it enough to file the policy in the HR office?

No. Section 6(4) requires the employer to bring the policy statement to the attention of each person under its direction. In practice, share it at induction, get a signed or electronic acknowledgement, put it where staff can find it, and remind people of it during regular training.