The importance of mental health to work is rising rapidly. In Kenya, legal activity is also focused on protecting cognitive health. The last few years have marked a shift from routine stigmatization of mental health to a more robust and legalized responsibility to show concern for mental health. This article outlines the main legal duties of Kenyan employers to protect mental health.

Constitutional Right to Health

Article(1)(a) of the Constitution of Kenya 2010 states that every person has the right to the highest attainable standard of health, which includes the right to health care services. The courts have interpreted this to require not only physical health but also mental health.

Occupational Safety and Health Act

Section 12 of Kenya's Occupational Safety and Health Act 2007 states: An employer shall (1) provide and maintain as far as is reasonably practicable a safe working environment, without health risks, and adequate as regards facilities and arrangements for the welfare at work of all persons employed by him or in his employment; and (2) make arrangements for ensuring, so far as is reasonably practicable, the safety, health and welfare at work of all persons employed by him or in his employment, whether they are in his job under a contract of service or otherwise.

• Section 6(1) mandates employers to ensure all workers' safety, health, and welfare.
• Section 6(2) imposes a duty on employers to provide working conditions and a procedure that is 'safe and without risks to health,' including 'mental health.'

Failure to comply with these provisions can result in fines or imprisonment.

Employment Act

The Employment Act 2007 prohibits 'discrimination concerning employment': (1) on the grounds of sex, marital status, pregnancy and childbirth, disability, sexual orientation or race... (b) by imposing upon any person conditions or requirements about the taking up or continuation of employment that are unreasonable and not justifiable about the particular circumstances of such jobs and the person concerned. Mental health conditions 'with a substantial adverse effect on ... a major life activity' are disabilities under the Act.

• Section 5(3)(a) prohibits discrimination in recruitment, training, promotion, terms and conditions of employment, termination or other matters arising out of employment.
• Section 46(g), for instance, grants each employee a minimum of 14 days of paid sick leave a year (7 days with full pay, 7 days with half pay). Every employee may use the sick leave when mentally unwell.

 This requires employers not to discriminate against employees with a mental health condition, to prescribe appropriate accommodations, and to ensure sick leave.

Work Injury Benefits Act

Suppose a worker has suffered an injury or contracted an occupational disease. In that case, they can claim compensation under the Work Injury Benefits Act 2007.

10(1): 'Injury' includes any disease and any impairment of, or any dysfunction of, a person's physical, mental, or psychological condition

Section 10(4) presumes an injury to arise out of and in the course of employment unless the contrary is shown.

These stipulations imply that mental harms caused or exacerbated by work can provide a basis for claims.

Labour Relations Act

Collective bargaining is regulated, and employment disputes are settled under the Labour Relations Act 2007.

Section 62 expressly authorises collective bargaining agreements to cover any matter remaining specifically enforceable under this chapter that is of mutual interest to the employer and employees.

The breadth of the definition allows unions to mandate mental health support and accommodations as part of collective agreements.

Recent Case Law

 In Tabitha Wambui Muthee v Mastermind Tobacco Kenya Limited (2020), the Employment and Labour Relations Court ruled that an employee's failure to provide a reliever for an active role involving high-pressure sales, which caused her mental breakdown, was unfair labor practice. This resulted in substantial damages awarded to the employee. Employers must provide a work environment that is not detrimental to the mental health of their employees. Failure to do so may result in legal liability.

Conclusion

Kenyan law increasingly acknowledges a duty to protect mental health in the workplace. Under the Constitution, occupational safety and health laws, non-discrimination provisions, workers' compensation, and collective labor relations, employers owe the mental health of their workforce.  These include a duty to provide a psychologically safe working environment and not to discriminate against individuals because of a mental health condition, a duty to provide paid leave, and an obligation to provide reasonable accommodation for mental health conditions to compensate psychiatric injury caused or contributed to by employment.

Progressive employers should go further than and legally required _ to, for example, provide employee mental wellness programs, train managers about mental health, and develop an open and inclusive workplace culture. Supporting employees'  mental health helps employers achieve productive, motivated, and loyal employees, which is what good employers do.