Advertisements

Memo_logo_lgThe situation…

It’s Friday afternoon, guys in the office are counting down the few hours left to the beginning of the weekend, when an email comes through from HR addressed to all staff, it reads: ‘This is a reminder that pursuant to Clause 7.8.9 of the Employee Handbook, those who will not have taken their accrued annual leave days by 31st March, will forfeit the days’… 31st March is four weeks away!

Lamentations

“This is why we need a Union in this place.”

“I have 30 accrued days, I’m I supposed to go on leave the whole of next month?”

“Is this legal?”

“I have 50 accrued days, my leave applications are always rejected because of the work load in this department.”

I will be going on maternity leave next month and I want to take some of my accrued leave days after that.

“I have 60 accrued days and we have the auditors coming next month, I can’t go anywhere”

…some of the comments and questions flying around.

237401-LawOrder-1314077166-489-160x120

The Law

Clause 7.8.9 provides that: –

You shall be entitled to 21 days annual leave. You may, with the consent of the Company, carry forward not more than 10 days leave to the following year. Any leave carried forward must be taken by 31st March of the following year failing which the leave shall be forfeited.

Section 28 of the Employment Act, 2007 deals with annual leave;

  • An employee is entitled to not less than 21 working days of leave with full pay after every 12 consecutive months of service.
  • The leave may, with the consent of the employee, be divided into different parts to be taken at different intervals and unless otherwise provided in an agreement between an employee and the employer or in a CBA, one part of the parts agreed upon shall consist of at least two uninterrupted working weeks.
  • Section 28 further provides that the uninterrupted part of the annual leave shall be taken during the year the leave is earned and the remainder shall be taken not later than 18 months from the end of the leave earning period.

According to Clause 7.8.9, employees are entitled to 21 leave days. Out of the 21 days, 11 are to be taken in the year they are earned, leaving not more than 10 which may be carried forward but only up to 31st March of the following year; meaning, any accrued days not taken by 31st March are forfeited.

The problem with this Clause is the requirement that all leave days be taken by 31st March. Under Section 28, employees have 18 months from the end of the leave earning period to utilize accrued leave before we can talk of forfeiture.

The Employment & Labour Relations Court has held that any provision in an employment contract providing for forfeiture prior to the lapse of 18 months from the end of the leave earning period is null and void for being contrary to the Employment Act.

The employees should take up the matter with management through the company’s grievance handling procedures. In one case decided by our courts, the presiding judge decried the culture of employees remaining silent while their rights are trampled upon.

Our Courts have also been categorical that after 18 months, any remaining accrued leave days stand forfeited.

workload

Exigencies of work

Where the reason for not utilising accrued leave days before the expiry of eighteen months is an employee’s workload or what is popularly referred to as ‘exigencies of work’, the employer is unlikely to succeed in arguing that the accrued days stand forfeited.

The employee should be paid the cash equivalent of the accrued days prior to the lapse of the 18 months. For this to apply, there should be evidence of denial of leave on grounds of exigencies of work.

For those entitled to more than 21 days

Section 28(5) of the Act applies where the leave entitlement is more than 21 days, in such a case, the employer and the employee may agree on how to utilise the leave days. This sub-section is not clear. Since the parties are at liberty to agree, does it mean that contracts for such employee can legally provide for a shorter period of forfeiture? It is arguable because the provisions on forfeiture in Section 28 seem to deal only with employees who are entitled to the statutory minimum.

Section 28 is borrowed from The ILO Holidays with Pay Convention (Revised), 1970 (No. 132) Article 9 thereof provides that,

Any part of the annual holiday which exceeds a stated minimum may be postponed, with the consent of the employed person concerned, beyond the period specified in paragraph 1 of this Article and up to a further specified time limit.

It appears that the intention is to increase the period to forfeiture for those entitled to more than the statutory minimum but our Section 28 is not as clearly worded, leaving room for conjecture and confusion.

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. Advocates. She has practiced employment law for over 10 years. She is a repository junkie and a lover of editing.

Advertisements

Disclaimer

The information on this website is for general guidance on your rights and responsibilities and is not legal advice. If you need more details on your rights or legal advice about what action to take, please contact a lawyer.

We try to ensure that the information on this website is accurate. However, we will not accept liability for any loss, damage or inconvenience arising as a consequence of any use of or the inability to use any information on this website.

We assume no responsibility for the contents of linked websites. The inclusion of any link should not be taken as an endorsement of any kind by us of the linked website or any association with its operators. Further, we have no control over the availability of the linked pages.


Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.


Comments

  1. Hi Anne, this is very insightful. Please provide details of the decisions you are referring to where judges have stated that after 18 months, any remaining accrued leave days stand forfeited.

    1. Anne Babu says:

      See Anthony Kavinguha v Erica Krug & another [2014] eKLR on the Kenya Law website.

  2. this is educative

  3. Lovena Ogalo says:

    Hi Anne Happy new year,

    From the above and the employment act 2007, it is clear that most employees can accumulate leave for more that one and a half years that is more that 21 days.
    How would you handle situations where the staff have accumulated so many leave days , what if you have sent several notifications to them but still they have not taken leave.

    1. Anne Babu says:

      You should compel them to go on leave. Leave days accrued over 18 months from the end of the leave earning period are deemed forfeited.

  4. S Akava says:

    Hello Ms. Babu. Thank you for the post. If my employer decides to pay me in lieu of the leave days, at what rate is the pay? Same as the salary or higher?
    Thanks

    1. Anne Babu says:

      Thanks for the compliments. It should be based on your normal daily rate.

%d bloggers like this: