Casual workers in permanent jobs deserve full employment rights; Court rules

The Court of Appeal has delivered a blow to employers who use casual or repeated short-term contracts to retain workers in jobs that are permanent in nature.

In a landmark ruling delivered in Nyeri on July 24, 2026, the court held that employers cannot rely on the contractual description of an employee as a “casual” worker to deny them statutory employment rights where the reality of the employment relationship shows continuous engagement in permanent work.

The decision followed a dispute involving Kenya County Government Workers Union and Embu County Government, where workers accused the county of salary inequality and alleged labour malpractice.

The employees argued that they had continued working on contractual terms despite performing duties associated with permanent positions, and sought orders requiring the county government to regularise their employment status from casual to permanent and pensionable terms.

The court ruled that the nature of the work and the actual relationship between the employer and employee matter more than the label attached to the contract.

According to the ruling, courts will look beyond the label attached to an employment contract and examine the substance of the relationship between the worker and employer.

The judges declared that the relationship between the workers and the county government was not casual or temporary but constituted permanent and pensionable employment.

The court further ordered the respondents to regularise the workers’ employment terms and conditions to align with fair labour practices as provided for under the Constitution and the Employment Act.

The ruling means that workers who have been continuously engaged for long periods under repeated short-term arrangements, or those labelled as casual employees while performing permanent duties, may be entitled to statutory protections under Section 37 of the Employment Act and Article 41 of the Constitution, which guarantees the right to fair labour practices.

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The decision reinforces the principle that employers cannot avoid permanent employment obligations by repeatedly renewing temporary contracts or assigning casual labels to workers whose duties and length of service indicate a permanent employment relationship.

The Court of Appeal effectively rejected attempts to use contractual arrangements to bypass employment protections, emphasising that the actual nature of the work and relationship between the parties carries more weight than the wording used in the contract.

The ruling overturned an earlier decision by the Employment and Labour Relations Court, which had dismissed the petition in June 2020, prompting the union to appeal.

The appellate court found that the lower court had erred by failing to properly consider the workers’ discrimination claims and by treating their grievances as issues that should have been handled only through a shop-floor union representative.

The judges noted that the petition involved alleged violations of constitutional rights, placing the matter within the jurisdiction of the Employment and Labour Relations Court.

The Court of Appeal ultimately held that the workers’ employment status had been mischaracterised and that their rights under Article 41 of the Constitution and the Employment Act had been violated.

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