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🚨 Can an employer be represented by an advocate before a labour officer while an employee is denied the same right? In Constantine Joseph Advocates LLP v Attorney General, ELRC Petition No. 27 of 2022, the Employment and Labour Relations Court examined the constitutionality of Section 48 of the Employment Act, which restricts legal representation in complaints presented before labour officers. Section 48 prohibits advocates from representing parties in proceedings before a labour officer. However, it permits representation or assistance by officials of trade unions and employers’ organisations, even where those officials are advocates. The Petitioner challenged the provision, arguing that it threatened the constitutional right to a fair hearing by denying parties access to legal representation. The Court declared the limitation on legal representation unconstitutional to the extent that it excludes advocates representing employees while permitting advocates acting as officials of employers’ organisations. Three aspects of the judgment are particularly significant: 1. The restriction created unequal treatment between employers and employees. The Court found that Section 48 effectively allowed an employer to be represented by an advocate who was an official of an employers’ organisation, while excluding an employee from similar legal representation. This created an unequal playing field and violated Article 27(1) of the Constitution, which guarantees equality before the law and equal protection and benefit of the law. 2. Proceedings before labour officers are subject to constitutional standards of procedural fairness. The Court recognised that labour officers exercise an administrative mandate under the Employment Act. Their proceedings are therefore subject to Article 47, which guarantees every person the right to administrative action that is lawful, reasonable and procedurally fair. 3. Limitations on constitutional rights must satisfy the test under Article 24. The Court found that the restriction imposed by Section 48 was neither reasonable nor justifiable in an open and democratic society. It noted that the provision, enacted before the promulgation of the 2010 Constitution, could not justify allowing one party access to legal representation while denying the other the same opportunity. The broader constitutional question The judgment highlights the importance of equality of arms in administrative dispute resolution. Although labour officers provide an alternative avenue for resolving employment disputes, the process must still respect constitutional guarantees of fairness and equal treatment. Key takeaway: Employers and employees appearing before labour officers should not be subjected to unequal standards of legal representation. A statutory provision cannot restrict access to legal representation in a manner that unjustifiably discriminates between parties. 👉 Follow @Lexken_EMSLaw for practical legal insights on employment law, constitutional rights and emerging legal issues in Kenya.