Integrating mental health protections into Kenya’s employment law: a comparative analysis with Australia

Abstract

Workplace mental health is emerging as a critical dimension of labour rights, yet Kenya’s employment law remains insufficiently equipped to address the psychosocial risks confronting workers. Although the Constitution of Kenya guarantees the right to health and fair labour practices, these protections are not meaningfully realised under statutes such as the Employment Act 2007, Occupational Safety and Health Act 2007, and the Mental Health Act 2019, which fail to recognise mental health as a core workplace concern. This legal gap contributes to increased inequality, absenteeism, presenteeism, and diminished productivity—particularly in high-pressure work environments. This dissertation employs doctrinal and comparative methodologies to critically analyse Kenya’s legal framework in light of Australia’s progressive approach. It examines how Australia’s Work Health and Safety Act 2011 and Fair Work Act 2009 embed enforceable protections for psychological health, including employer duties, mental health risk management, and support mechanisms such as Mental Health First Aid and Employee Assistance Programs. The study also draws on leading case law, such as Roussety v. Castricum Brothers Pty Ltd, to demonstrate how enforceable legal duties can prevent workplace-related psychological harm. Based on this analysis, the research proposes targeted reforms to Kenya’s labour law regime. It recommends amending the Employment Act and Occupational Safety and Health Act to include mental health as a legally protected aspect of workplace safety. These reforms are supported by a phased implementation strategy involving mandatory workplace mental health policies, binding Codes of Practice, and a national training framework. Ultimately, the study asserts that workplace mental health must be treated as a legal obligation rather than a discretionary policy choice, essential to building an inclusive, resilient, and rights-based labour system in Kenya.