Rethinking the legal reasoning of the employment and labour relations court: the role of rebuttable presumptions in establishing informal employment relationships in Kenya

Abstract

Informal employees in Kenya often struggle to prove the existence of an employment relationship before the Employment and Labour Relations Court (ELRC), owing to evidentiary barriers rooted in structural and systemic inequalities. Through a case analysis, this study evaluates the legal reasoning adopted by the ELRC in such cases where the relationship is in dispute, and there is evidentiary deficiency. It reveals that both the prevailing strict and lenient approaches are flawed. While the strict approach disproportionately burdens claimants unable to produce formal proof of employment, the lenient approach allows claims to succeed without sufficient scrutiny of evidence, risking judicial inconsistency and abuse. In addressing this gap, the dissertation examines the potential of a rebuttable presumption of employment as an evidentiary tool to correct this imbalance. Drawing on comparative insights from the European Union and South Africa the study assesses the strengths and weaknesses of its current operation in labour law. While these presumptions ease the claimant’s burden of production, they rely on pre-existing employment indicators that may not fully reflect the informality of certain work arrangements. The dissertation ultimately proposes a discretionary presumption guided by an understanding of the context and the claimant’s circumstances, allowing courts to determine its applicability based on the circumstances of each case. This approach seeks to balance the requirement of proving a case with the need to account for structural evidentiary deficiencies, thereby advancing substantive fairness and improving access to justice for informal employees in Kenya.