Equal remuneration for work of equal value: a case for Employment Act rules to promote gender pay equity in Kenya

Abstract

Article 27 (3) of the Constitution of Kenya, 2010 stipulates the right to equal treatment between men and women in political, economic, cultural, and social spheres. In addition to this Section 5(5) of the Employment Act, 2007 details the principle of equal remuneration for work of equal value, between men and women, this is referred to as gender pay equity. It is evident from several studies that have been conducted, that gender pay equity, has proved difficult to achieve in most countries in the world, Kenya included resulting in gender pay gap. To mitigate the effects of the gender-pay gap, it is imperative to evaluate provisions in the law, in order to discover whether they strengthen or limit the gender pay equity principle. This study, therefore, sought to assess the sufficiency of Kenyan Law in respect of gender pay equity and to explore the need for rules to the Employment Act, in a bid to promote gender pay equity. A comparative methodology approach between Kenya and South Africa, was relied on to analyse the South Africa's legislation, regulations, code of good conduct and case law. The findings from this comparison illustrate that there were several gaps in the formulation of Kenya's Employment Act, 2007, which limit its effectiveness in being applied to implement gender pay equity in Kenya. Further, together with other studies on gender pay equity in the workplace, this study underscores the need for legislative reforms through the enactment of rules that should be formulated to address the gaps identified in Kenya’s legislation on gender pay equity.