Kenya’s Legal Framework on Workplace Mental Health: Duties, Rights, and Emerging Challenges

The World Day for Safety and Health at Work, observed annually on April 28, is a UN international day focused on promoting the prevention of occupational accidents, injuries, and diseases globally. It is principally organized by the International Labour Organization (ILO) as the specialized UN agency which promotes international labour rights. ILO’s theme for this year’s World Day for Safety and Health at Work is ‘Ensuring a healthy psychosocial working
environment’.

In commemoration of this day, we at Munyao Muthama and Kashindi Advocates reflect on the Kenyan legal landscape governing mental health in the workplace, highlighting the key rights and obligations of the various actors, as well as emerging challenges

Introduction

Once dismissed and clouded by stigma, mental health has now found its way into boardrooms and onto factories and shop floors, recognised not only as a wellness concern but increasingly as an ESG priority and a legal obligation. Kenya has made significant strides in this shift, yet the journey to fully embed mental health into workplace law, policy, and culture is still evolving. With this shift, mental health is now framed not simply as a personal well-being matter but as a question of organisational resilience, compliance, and productivity. The workplace has become a frontline for these challenges, raising critical legal and policy questions about duties, rights, and accountability.

Mental health matters beyond the individual

The World Health Organization defines mental health as “a state of mental well-being that enables people to cope with the stress of life, realize their abilities, learn well and work well, and contribute to their community.” It is not just the absence of illness but a foundation for productivity and human dignity. The World Economic Forum notes that only about a quarter of employees worldwide report being happy at work. Moreover, depression, anxiety, burnout, and related conditions are among the leading causes of employee absenteeism, including frequent sick days. Globally, depression and anxiety cost nearly US$1 trillion annually in lost productivity. In Kenya, mental health challenges cost the economy Ksh 62.2 billion in 2021, about 0.6 per cent of GDP. At the global level, mental health has also entered the Environmental, Social and Governance (ESG) agenda, with investors and regulators increasingly assessing how organisations safeguard employee wellbeing under the ‘social’ pillar. These trends show that mental health is as much an economic and governance issue as it is a personal one.

The constitutional and statutory framework

Kenya’s Constitution guarantees the right to the highest attainable standard of health (Article 43), human dignity (Article 28), and fair labour practices (Article 41). Together, these provisions create a foundation for mental health rights at work. The Employment Act (2007) prohibits discrimination based on health status and provides safeguards during termination for incapacity, though it does not explicitly refer to mental health. The Occupational Safety and Health Act (2007) goes further. Section 6 requires employers to provide information, instruction, training, and supervision to protect safety and health, and Section 76 obliges them to protect employees from conditions likely to cause mental strain. The Mental Health Cap 248 further strengthens these rights by protecting dignity, prohibiting discrimination and stigma, guaranteeing confidentiality, and requiring parity in medical insurance cover for mental health.

Policies and guidelines

Beyond statutes, the National Guidelines on Workplace Mental Wellness (2023) provide a three-part framework of promotion, prevention, and care. They direct employers to integrate safety and health management systems. Importantly, they also recognise employees as rights-holders entitled to safe workplaces, non-discrimination, reasonable accommodation, confidentiality, and due process. These Guidelines, while not law, create a benchmark for good practice and will likely influence judicial interpretation.

Judicial precedent

Kenyan jurisprudence has filled some legislative gaps. In Gichuru v Package Insurance Brokers Ltd (2021), the Supreme Court held that dismissal based on an employee’s incapacity should not be an employer’s first response. Employers must consider reasonable accommodation, unless it causes undue hardship. In MMG (2023), the Supreme Court affirmed that while MMG’s severe mental illness impaired her ability to perform her duties, mental illness does not automatically amount to incapacity. The Court adopted an intermediate standard of proof, lower than ‘beyond reasonable doubt’ but higher than a ‘balance of probabilities’, making it a higher threshold than in ordinary dismissal cases. It stressed that incapacity must be established through qualified medical evidence, fair process, and that any limitation of rights should go only as far as necessary in the circumstances. In AWW (2025), the Employment Court awarded damages after finding that an employer unlawfully dismissed a worker for absconding duty without taking account of her mental health condition and without providing reasonable accommodation. In BIFU v BBK [2014] and SRR v JSC [2019], the courts upheld dismissals where employers had made reasonable accommodations through counselling, medical referrals, and rehabilitation support, but the employees failed to cooperate. Together, these cases illustrate the courts’ balanced approach: employers must act with fairness, care, sensitivity, and provide reasonable accommodation, while employees are expected to engage honestly and responsibly with the support offered.

The international framework

The International Labour Organization (ILO) recognises a safe and healthy working environment as a Fundamental Principle and Right at Work. This elevates occupational safety and health, including mental health, into the category of universal entitlements. The ILO has identified psychosocial risks at work, including job demands, workload, organisational culture, career development, job insecurity, interpersonal relations, and the home–work interface (Psychosocial Risks and Mental Health at Work,
2024). Its core instruments, the Occupational Safety and Health Convention, 1981 (No. 155), the Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187), and the Violence and Harassment Convention, 2019 (No. 190) (which is yet to be ratified in Kenya) collectively affirm that safeguarding both physical and psychological wellbeing is central to decent work.

Employer obligations and risks

Employers are required to do more than provide medical insurance or react to crises. The law places proactive duties on them: conduct risk assessments that include psychosocial hazards, develop workplace policies, train managers, protect confidentiality, and provide reasonable accommodation. Failure exposes employers not only to litigation risk but also to regulatory sanctions under the Occupational Safety and Health Act. At the same time, employers face real challenges. Abuse of mental health claims in disciplinary processes, the rise of technostress from constant digital connectivity, and growing social risks such as gambling addiction test the boundaries of existing laws. These scenarios show that employers must balance compassion with accountability, while policymakers must provide clearer guidance on emerging risks.

Emerging challenges

Technostress has become a significant concern, recognized by the ILO as an emerging workplace hazard. It arises from continual technological change and the expectation that employees remain constantly connected, respond instantly, and adapt rapidly to evolving systems. This demand to work faster and longer, coupled with the difficulty of mastering complex digital tools and the uncertainty of ever-updating AI systems, erodes work–life boundaries and fuels fatigue, anxiety, and burnout.

Gambling addiction is another emerging risk. The rise of mobile betting platforms has created a new form of workplace vulnerability, leaving many employees struggling with financial strain, distraction, and compulsive behaviour. This not only undermines productivity and stability at work but also blurs the line between personal conduct and workplace impact. Unlike traditional stressors, these “newer triggers” often remain hidden, and employers may not realize that depression, absenteeism, or declining performance are linked to the new stressors. These challenges expose gaps in current frameworks. Neither the Employment Act nor OSHA explicitly address them, yet they fall within the broader obligation under section 76 of OSHA to protect workers from conditions likely to cause mental strain. They also raise difficult questions of policy: how far should employers intervene, and what form should reasonable accommodation take in such cases?

A collective tripartite responsibility

Mental health at work is a shared duty across all actors, consistent with the ILO’s tripartite approach that underscores social dialogue and partnership between employers, employees, and government. Employers carry the greatest burden, given their control over workplace conditions. The law places proactive duties on them: to conduct risk assessments that include psychosocial hazards, develop and implement workplace policies, provide reasonable accommodation, ensure confidentiality, and offer information, training, and supervision. Managers and supervisors, as part of this obligation, should match tasks with abilities, recognise those at risk, allow time to seek help, and organise work schedules that support rest. Leadership must approve and fund wellness initiatives, align policies with statutory obligations, and promote a culture of openness and respect. Employees also have responsibilities. The 2023 National Guidelines on Workplace Mental Wellness emphasise self-care, developing coping skills, building social support, and seeking care when needed. Workers are expected to engage honestly with workplace processes, use leave and accommodations responsibly, and cooperate with assessments and reintegration measures. The Government plays a central role in setting standards and enforcing compliance. Beyond inspection and enforcement, it must prioritise legal and policy reform to close gaps in current frameworks and ensure that national law keeps pace with global standards. Courts reinforce this responsibility by interpreting and applying the law in ways that balance fairness with operational realities.

Conclusion

Kenya has made significant progress in developing a legal and policy framework for workplace mental health, anchored in the Constitution, statutes, guidelines, and international obligations. Yet gaps remain in clarity, implementation, and responsiveness to new risks. Employers must meet their statutory duties, employees must exercise their rights responsibly, and the government must refine the framework to address emerging challenges. The future of workplace mental health in Kenya will be determined by how effectively these duties, rights, and challenges are balanced in practice.