Judge Byram Ongaya on 2 June restrained Meta and its sub-contractor Sama from proceeding with the lay-off of 260 content moderators in Nairobi pending the outcome of a petition which challenges the legality of those redundancies. The Employment and Labour Relations Court further required Meta and its sub-contractor to provide “proper medical, psychiatric and psychological care” to the content moderators pending the determination of the petition, and to regularise the immigration status of those foreign content moderators whose permits are dependent upon their employment. The impact of the ruling on Meta stems from a finding by the Court that Meta’s practice of setting work and performance standards for the content moderators made Meta their “primary or principal” employer – Sama was found to be “merely the agent” of Meta. Meta has filed a notice of appeal against the ruling.
The dispute arose from a decision by Sama to close its content moderation hub in Nairobi. 184 content moderators brought an interim injunction seeking the above reliefs, along with an order prohibiting Meta’s new regional content moderation sub-contractor Majorel from refusing to hire qualified content moderators on the basis that they were formerly employed by Sama – an interim relief that was also granted by the Court. The basis for the Court’s decision was that there no genuine justification for the redundancies, and that (following testimony from the content moderators that described their workplace as an environment of “intimidation, fear and anxiety”) there was an obligation on employers to provide content moderators with “proper medical, psychiatric and psychological care”. In determining that Meta was the “primary or principal employer” of the content moderators, the Court considered the fact that Meta provided the content moderators with the tools that they needed to perform the work, monitored their performance and working time (including their bathroom breaks), and provided them with tasks (in the form of tickets) that directly served Meta’s interests.
There were nine notice parties in the case: the Kenya Human Rights Commission; the Katiba Institute (a Kenyan NGO focused on defending and promoting the Kenyan constitution); Kituo Cha Sheria (a Kenyan NGO focused on the provision of legal aid); the Kenya National Human Rights and Equality Commission; the Kenyan Central Organisation of Trade Unions; the Kenyan Attorney General; the Kenyan Ministry of Labour, Social Security and Services; the Kenyan Ministry of Health; and the Kenyan Ministry of Foreign Affairs. Although the Kenya National Human Rights and Equality Commission, the Central Organisation of Trade Unions, the Attorney General, and the Ministries did not enter an appearance in the matter, in its ruling the Court ordered those parties to review the employment law and policy relevant to the protection of employers and employees in the sphere of digital work and workplaces.
The Court ordered Meta and Sama to jointly or severally pay the costs of the content moderators’ application.
Click here for the judgment in Arendse & 42 others v Meta Platforms, Inc & 3 others; Kenya Human Rights Commission & 8 others (Interested Parties) (Constitutional Petition E052 of 2023) [2023] KEELRC 1398 (KLR).