In a landmark ruling, the Employment and Labour Relations Court of Kenya in Mombasa has ordered Absa Bank to pay over KSh 7 million in damages to a suspended senior employee, Thomas Macharia Mwangi, after the bank was found guilty of unlawfully prying into his private life.
Mwangi, a former senior branch manager at Absa’s Nkrumah Road branch in Mombasa, had been suspended over allegations of approving irregular overdrafts.
However, the court found that the bank had crossed a legal line when it hired a private investigator to dig into his personal life during the suspension period.
Lady Justice Monica Mbaru, who presided over the case, emphasized the fundamental right to privacy, noting that “protecting privacy is necessary if an individual is to lead an autonomous, independent life, enjoy mental happiness, develop diverse interpersonal relationships… The importance of privacy to the individual and society certainly justifies the conclusion that it is a fundamental social value and should be vigorously protected in law.”
The court heard that Mwangi was suspended on March 17, 2023, on grounds of his involvement in unauthorized overdraft facilities.
His suspension, initially set for 30 days, was extended on April 14, 2023, while the bank continued its investigations.
However, rather than sticking to issues related to his professional conduct, Absa took the controversial step of delving into Mwangi’s personal life through private surveillance.
The court was scathing in its criticism of the bank’s approach, stating, “The conduct of the respondent leading into the investigations of the claimant’s private life in the context of matters ongoing at the workplace is not justified. No basis was given for such conduct.”
Despite the serious allegations regarding Mwangi’s role in irregular lending practices at the bank, Justice Mbaru ruled that any concerns about his professional behavior should have been handled internally, rather than through clandestine personal investigations.
“Whatever conduct he engaged in after office hours, where this was found contrary to his letter of appointment and workplace policy, recourse was to invite him to address,” the judge said.
The court found that Absa’s actions amounted to a violation of Mwangi’s constitutional right to privacy, awarding him KSh 5 million in general damages, KSh 2.3 million in unpaid bonuses for the year 2022, and other payments including notice pay and salary increments, bringing the total compensation to over KSh 7 million.
Absa had argued that its actions were justified given the serious financial irregularities Mwangi was accused of overseeing, but the court firmly rejected this stance, making it clear that the employer had overstepped its bounds.
“Engaging in private investigations and then failing to bring such matters to the claimant to address as an employee was not justified,” the judgment read.
This ruling sends a powerful message to employers about the boundaries of employee privacy, even in cases where misconduct is suspected.
The court referenced a 2015 judgment in Coalition for Reform and Democracy (CORD) & 2 others v the Republic of Kenya & 10 others, which underscored that “each intrusion upon private life is demeaning not only to the dignity and spirit of the individual but also to the integrity of the society.”
Mwangi, who was employed as a branch manager in February 2019 and later promoted to senior branch manager at the Mombasa branch in 2021, can now walk away with a significant compensation package for the violation of his rights.
Absa has not yet indicated whether it will appeal the ruling.
What This Means for Employees and Employers
This judgment underscores the importance of respecting employee privacy, even when serious allegations arise.
Companies must tread carefully when conducting investigations, ensuring that they remain within legal and ethical boundaries.
Failing to do so could result in costly legal battles and significant damage to the organization’s reputation.
For Thomas Macharia Mwangi, this ruling is not just a victory for privacy rights but a reminder that employers must respect the law, even when dealing with sensitive matters of misconduct.
