Legal Position on the Use of Polygraph Testing at the Workplace in Kenya
Legal Position on the Use of Polygraph Testing at the Workplace in Kenya
Introduction
This is a preview on legality and the extent of use of polygraph testing at the workplace, both to vet new employees and to monitor the behaviour and compliance of workplace policies by employees at the workplace. The discussion falls under the following;
- Admissibility of polygraph evidence in both criminal and civil proceedings and if admissible, the weight attached to such evidence;
- Whether disciplinary measures can be hinged on such evidence;
- Whether the employer would be under a duty to disclose the polygraph results to the subject employees; and
- The exact option that would serve efficiently based on what other companies already employing polygraphs on their employees use.
The General View on Polygraph Testing
Polygraphy can be defined as the process which is used in medical practice for comprehensive study of functioning of different body systems with particular reference to circulation, respiration and peripheral nervous response.[1] It is a test used to verify a person’s truthfulness and is often called a ‘Lie Detector Test. Polygraph has also been defined to mean voluminous writing; the use of the polygraph as a lie-detector.[2] Polygraph is a fairly new concept in Kenya, especially in employment and labour disputes. As such therefore, there is no specific legislation in Kenya that deals directly with polygraph testing.
It is worthy to note that for an employer to employ polygraph test to the employees, there ought to be consent by the examinee/employee. In most cases, the consent requires to be in writing. The examinee requires some certain assurances before the examination is administered. Individuals need to be informed that the examination is voluntary and that no discrimination whatsoever would arise from the examination. The results ought to be communicated to the examinee only or to a person appointed by the employee.
Polygraph testing evidence has been classified as scientific or expert evidence. As such, its reliability and admissibility ought to follow the rules of expert evidence.
When can polygraph testing be applied?
Employers may generally adopt polygraph testing in the following scenarios; where employees had access to the property which is the subject of the investigation; where there is a reasonable suspicion that the employee was involved in the incident; where there has been economic loss or injury to the employer’s business like theft of company property; where the employer is combating dishonesty in positions of trust; where the employer is combating serious alcohol, illegal drugs or narcotics abuse and fraudulent behaviour within the company; where the employer is combating deliberate falsification of documents and lies regarding true identity of the people involved; vetting employees before employing them, among other incidents.
Polygraph test may not be interpreted as implying guilt but may be regarded as an aggravating factor especially where there is other evidence of misconduct. In other words, polygraph test results, on their own, are not a basis for a finding of guilt. It can be used only in support of other evidence.
Polygraph Testing: The Kenyan Legal Regime
This section will delve into reviewing polygraph testing through the Kenyan legal regime prism.
Legality, admissibility and the Use of Polygraph Testing at the Workplace
The employment and labour relations arena has recently acquired constitutional attention in Kenya.[3] Previously, employment disputes in Kenya were treated as subordinate complaints that only required being resolved through tribunal proceedings, or lower courts. That has now changed.[4]
Before an employer resolves to employ polygraph testing on the employees, there is need to firstly look the idea through the employees’ rights as elucidated in the Constitution and other related statutes. The analysis would be helpful in finding out whether by so doing (by employing polygraph), any right would be trampled on.
The genesis of the workplace rights are found at Article 41 (1) and (2) which provide as follows;
(1)Every person has the right to fair labour practices.
(2) Every worker has the right—
(a) ……………………………….
(b) to reasonable working conditions;
The crux of the matter is whether subjecting employees to random polygraph testing encroaches on the right to fair labour practices[5] and the right to reasonable working conditions.[6]
For polygraph evidence to be admissible, it must therefore meet the threshold of admissible evidence. It must be noted that obtaining evidence from any person/employee through means that intrude on that person’s rights and fundamental freedoms is illegal. The same evidence cannot be admitted in court. The Constitution provides thus;
‘Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.’[7]
It would therefore mean that if any employer is desirous of employing polygraph test, then the same ought to fall within the cited provisions of the law. It must therefore be remembered that an employer should be cautious in employing polygraph testing as the same evidence would require to be subjected to numerous provisions of the law in order for the same to be admissible as proper evidence. There ought to be consent by the employees, consent which would be efficaciously obtained if the same is included in the contracts of service (either on review of the same for the existing employees).
Administratively, the veracity of polygraph testing must be looked through Article 47 which states thus;
-
Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair;
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If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
What about the right to fair hearing? The process of determining whether an employee is guilty of an alleged offence at the workplace requires that employee to be given a right to respond to any of the allegations raised against them. For this issue to be addressed, the employer needs to have in place a qualified polygraph examiner who may be called upon and subjected to cross-examination by the person alleged to be guilty basically on the basis of the polygraph evidence.
The weight attached to polygraph testing is thus dependent on how legally procedural the process is undertaken.
Local Courts on Polygraph Evidence
Preliminarily, there is no statute or case-law that expressly prohibits or allows the adoption of polygraph testing by employers (both private and public) at the workplace in Kenya.
In Darn Otieno v Stanbic Bank Kenya Limited [2012] eKLR, the Plaintiff sought general damages against the Defendant on account of being subjected to false imprisonment and further for being subjected to polygraph test. The Defendant in instigating the arrest of the Plaintiff had sought the services of the Anti-Banking Fraud Unit. It is this Unit that subjected the Plaintiff to polygraph testing. The court dismissed the suit intimating that since the Plaintiff had not joined the Anti-Banking Fraud Unit in the proceedings, it would have been difficult for the court to canvass the aspect of the alleged subjection of the polygraph testing.
In Duncan Obiero Obiero V Fairview Hotel Limited [2014] eKLR the Claimant alleged constructive dismissal from work on various reasons among them being subjected to polygraph testing even after objecting to the same. The main reason for the Plaintiff’s resignation was that the environment of the employment was such that the employer did not allow the claimant to receive phone calls at the workplace. The aspect of subjection of polygraph testing was never canvassed substantively. Be that as it may, the court noted as follows;
Examples where this [constructive dismissal] may be implied is where…an employer is subjected to physical or psychological environment such that it would be unreasonable to expect the employee to continue in employment of the Respondent inter-alia.’ (Emphasis my own).
It is worthy to note therefore that courts, while faced with the issue of polygraph testing in the course of the proceedings have tended to avoid the same in their final determinations. It is advisable that employers employ polygraph tests without polluting the environment of workers, as the same would end up evoking constructive dismissal.
In William Kiaritha Gacheru v East African Packaging Industries Ltd [2016] eKLR, the court noted the following;
The Court is in agreement that polygraph testing as presently stands can do no more than show the existence of or non-existence of deception. Due to its several limitations and margin of error, it is not safe to rely on and cannot itself be used as a conclusive proof of guilt of crime or misconduct. Besides a person can lie without necessarily being guilty of the crime or misconduct he is alleged to have been involved in. Technology however must be encouraged in development if solutions to daily and myriad problems are to be lessened. In the legal field, it was not until recently when video and email evidence became admissible in our Courts. There was initial resistance but by embracing these new technologies judicial work has been considerably simplified and expedited.
Far from the normal employment procedure by private entities in Kenya, the use of polygraphs has been employed in the hiring of members of the National Intelligence Service. The Act provides that for one to become a member, the Director-General may in the prescribed manner, issue directives on polygraph testing or any other method of testing.[8] That is the closest that a Kenyan statute has come to mentioning polygraph testing. It can be gathered, without much dispute, that any Intelligence Service Unit of a country ought to be an epitome of integrity because of the nature of business undertaken in the service. The performance in the unit is tantamount to the heart of a state, and that is probably why polygraph may be employed in assessing the suitability of the members.
Since the arena of polygraph testing at the workplace in Kenya has not gathered any notable judicial attention, the jurisprudence gaps are therefore still glaring. To fill these gaps, we would be obliged to cross our territorial borders and see how other more advanced jurisdictions have treated the matter.
Conclusion and Recommendations
From the above exploration, the following would be recommended;
The Kenyan jurisdiction on employment and labour relations is now constitutionally recognized. Employers have obligations that need to be observed in order to preserve the rights and fundamental freedoms of the employees. There is no express law that outlaws or allows polygraph testing at the workplace.
As it appears, employers may be at liberty to employ polygraph examination on their employees at the workplace. However, the results obtained may not form the only sole ground of founding the guilt of the examined employee. There ought to be other forms of evidence to corroborate polygraph results. Courts have exhibited reluctance in admitting polygraph examination. Proper mechanisms and procedures must be in place if any employer really needs to start on the use of polygraph devices at the workplace. There needs to be consent of the employees. Clauses regarding the same ought to be in the employment contract.
For the holistic polygraph examination to be acceptable legally, the same must be undertaken within the acceptable terrains. Polygraph examination requires to be undertaken by qualified polygraphists. Currently, there are no known training institutions in Kenya offering the same, but the employer would outsource such personnel. The machines used must also exhibit some level of approved reliability and efficiency. Training employees on the use and the purpose of polygraphs at the workplace is also recommended. The employees’ training would facilitate general acceptance of the use of polygraphs.
There is no actual option that works better than the other. The best one is that which the employer would find financially viable and easy to undertake the examination.
[1]The basis of its application is the fact that mental excitation or stimulation there is alteration of these body functions due to autonomic, particularly sympathetic excitation. The end result is that a suspect would be known to either deceive or not while facing interrogation by the relevant authority.
[2] Chambers Dictionary, 4th Edition, (2000).
[3]Through the promulgation of the Constitution of Kenya 2010.
[4] There is now an Employment and Labour Relations Court established by virtue of Article 162 (2) (a) of the Constitution of Kenya 2010.
[5] Fair (unfair) labour practices have not been defined in the Constitution or statute. This is unlike the statutory framework obtaining in other jurisdictions such as South Africa where section 186(2) of the Labour Relations Act has defined unfair labour practices. It is a flexible term not capable of precise definition. Therefore it is left to the Courts to define and determine the scope, content and extent of what would qualify to be an unfair labour practice, or to put it in the converse what conduct or practice would amount to an unfair labour practice
[6] See George Onyango Akuti v G4S Security Services Kenya Ltd [2013] eKLR.
[7] See Article 50 (4).
[8] See Section 17 (3) of the National Intelligence Service Act of 2012.
