Advertisements

The subject of domestic workers is one of the most frequently searched topics on this blog. I have also received a number of telephone calls and emails on this issue. This post is therefore here due to public demand!

The questions are, are domestic workers employees under the Employment Act, 2007? What rights and obligations apply?

This post targets those domestic workers who are employed continuously, that is,  from Monday to Sunday.

Definition

A “domestic worker” is someone who is employed wholly or partly in any private household as a cook, house help, waiter, butler, nanny, valet, chauffeur, bar attendant, gardener or labourer.

Under the Employment Act, an employee is a person who is employed for wages or a salary;  a domestic worker is, therefore, an “employee” under the Act.

download (1)Rights

  • The right to an employment contract if employed for more than 3 months. The contract should be given within 2 months after the beginning of the employment;

This is in the best interests of the employer because, in the absence of a contract, the burden of proving or disapproving an alleged term of the employment, in any legal proceedings, falls on the employer.

In Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers (KUDHEIHA) vs Fatuma Mohamed [2015] eKLR the Industrial Court held that the duty is vested on the employer to issue a contract to the employee. Where such a contract is not issued, the verbal assertions of the employee, where a dispute occurs, must suffice in the absence of any written agreement stating otherwise. It is therefore imperative for all employers to issue the contract of service as from it each party is able to appreciate the terms and conditions of the employment.

Just so that you can be sure that documentation is an employer’s best friend, many cases have come to my attention of domestic workers reporting their employers to labour officers and claiming all manner of things. Now if you, the employer, do not have written proof that you gave your domestic worker leave or that you were not underpaying him/her or that you followed the prescribed procedure prior to termination, you have a major problem.

I’m not talking about complex lengthy documentation, the simpler and the shorter the better.

  • Changes to the terms and conditions of service should be effected after consultation with the employee and the employee should be notified of the changes in writing;
  • Remuneration which is not less than the prescribed minimum wage;

images

  1. The weekly working hours should not exceed 52 and any time worked above that should be compensated by overtime computed at the rate of 1.5 times the employee’s normal hourly rate for overtime worked on normal working days and 2 times the employee’s normal hourly rate for overtime worked on normal rest days and public holidays;
  • The employee is entitled to 1 rest day in every 7 day period.
  • Not less than 21 working days of annual leave with full pay;
  • 3 months maternity leave or 2 weeks paternity leave with full pay;
  • Sick leave of not less than 7 days on full pay and 7 days on half pay;
  • N.H.I.F deduction and remittance if earning more than Kshs. 1,000/= per month – better ensure this is done so that you are not liable to pay medical bills;
  • N.S.S.F contribution and remittance;

For N.H.I.F and N.S.S.F, I think the simplest thing to do is to get the worker to register as self-employed and to request for receipts confirming payment of the requisite remittances.

  • P.A.Y.E – if the remuneration is above the tax threshold (KShs. 11,180/=);
  • The right to form and join trade unions such as KUDHEIHA (The Kenya Union of Domestic, Hotel, Educational Institutions, Hospitals, and Allied Workers), the right to participate in the lawful activities of the trade union and to strike;

download

  • The prescribed procedure should be followed prior to termination;

In Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers (KUDHEIHA) v Fatuma Mohamed [2015] eKLR the court found the house help’s termination to be unfair as she was never given a written notice of termination. The court held that the failure to issue a written notice or the termination letter to the grievant as the employee amounts to an unfair labour practice which is prohibited in law and under the Constitution at Article 41.

In Hildah Mwangale vs Fiyabi Fisiquot [2017] eKLR the court held that the house help’s termination was unfair as there was no termination notice, no notification of her wrongdoing and she was never given a hearing before termination.

  • Provision of housing or payment of a housing allowance or a consolidated salary. Note that the minimum monthly wage is exclusive of housing allowance whereas the minimum daily wage is inclusive of housing allowance;
  • Service pay unless they were members of NSSF or any other social security scheme whose terms are more favourable than service pay;
  • Compensation for work-related sicknesses, diseases or death;
  • Protective clothing, where necessary.

TEMPLATE

The much-requested template domestic worker contract is available on soft copy upon payment of the sum of Kshs. 5,000/= (USD 50). If you are interested in purchasing the template, send an email to anne.babu@kenyaemploymentlaw.com. Further information will be sent to you within 24 hours.

Please VOTE for this blog in category 11(c) – BAKE AWARDS – CLICK HERE.

***THE END***

Follow us on Twitter.

Other useful posts: The Law and the Domestic Worker and Domestic Workers; employers’ obligations in relation to N.H.I.F and N.S.S.F.

This post is copyrighted.  Appropriate legal action will be taken for breach of copyright!

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. She has practised employment law for close to 12 years and her employment law practice has been recognized by the prestigious Chambers & Partners. Anne cares about employers and their labour issues.

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. Daniel says:

    If verbal assertions of an employee are upheld in absence of a written contract, what does that imply in case a person imposes self on an business and claims to be or to have been an “employee”? Its a bit hypothetical, but i just wonder if this not a loophole. Doesn’t the court require a person to give proof of employment first?

    1. Anne Babu says:

      The person alleging to be an employee must prove that he was employed by showing eg that he was being paid regularly etc.

  2. Beth wariu says:

    Hello Madam,

    Kindly assist me with the latest salaries schedule for domestic workers.

    Thank you.

    1. Anne Babu says:

      There’s link in the article in the point on minimum wage.

      1. Stella says:

        Hi Anne
        Please assist with responses to some queries i have;
        If i have a worker who only comes to my house on 3 specific days in a week, do they qualify for Minimum wage, annual leave, statutory deductions?
        Please assist with a sample contract for domestic workers.

        Stella

        1. Anne Babu says:

          Part-timers are not entitled to leave but the statutories should still be paid if their pay exceeds the requisite threshold.

  3. Annah Wahome says:

    Hello Anne,my house just resigned with 2hours notice and now claims I should pay one month salary for years worked ie 2years.No notice;I didn’t quarrel her.whats your advice.she resigned and I payed her for the days she worked month

    1. Anne Babu says:

      She’s entitled to service pay if you’ve not been deducting and remitting NSSF – 15 days pay for each year – less the notice she is supposed to give you. Document everything you pay including her mode of leaving.

  4. Nyambura says:

    Hi please advise me what is the service pay owed for a worker who has worked for me for 5 years? I have paid her full salary and one month salary in lieu of notice. I did not pay her NSSF. Thanks

    1. Anne Babu says:

      15 days pay for every full year worked.

  5. people should read this

  6. hellen says:

    amazing article. we should respect our domestic workers

  7. Karen says:

    My employer wants to close down business without notice.
    She claims she hasn’t employed as that we are only therapists(beauty industry).we have worked here for 4-5yrs,without contracts, without annual leave, without NSSF or NHIF.
    What are our rights?

    1. Anne Babu says:

      Please see the articles that we have done on redundancy – you will learn how it should be done lawfully and your terminal benefits.

  8. Joseph says:

    What measures are domestic worker bureaus supposed to follow before giving someone a house help e.g. verification of documents ie id card,where from,background, health status . Is there a law on this to protect the employer?

    1. Anne Babu says:

      There are no laws on the measures that a bureau should take.

  9. Sarah says:

    Hello,, due to misunderstanding between m and my employer I decided to resign because they insist on something I can t do,, so my worry and question is I have been with them for two years and one month now, they are under American embassy so how do I get to know my severance? And my nssf payment haven’t been able to get access to it plz advice on Wat to do

    1. Anne Babu says:

      Report to NSSF on non-remittance of NSSF and to a Labour officer for any terminal dues.

  10. Danielle says:

    I had a case with my employer in hospitality industry. I took some money around 6000 from cashier coz I had an emergency and it was a night shift and was to refund the following morning of which I did. the manger wasn’t happy and I was summoned unaware and made to sign 1st and 2nd warning letter and the case was over. the following morning I was told that I’m to be suspended and would be called back. was not served with any suspension letter. can I proceed with the legal action

    1. Anne Babu says:

      Is the suspension for investigations or disciplinary purposes? The general position is that an employee should not be punished twice for the same offence.

  11. Kennedy mwangi says:

    I work in accompany for 10 years and I decide to quit the job I give them 2 months notice. But when I go to HR manager he told me that the company they were not paying services please help me

    1. Anne Babu says:

      I’m sorry, your question is not clear.

  12. Kiran Shah says:

    Good morning Madam. I note that you state that weekly working hours should not exceed 52 hours for a Domestic Worker. What about a Shop counter salesman?

    Really loved reading your articles.

    1. Anne Babu says:

      Thank you. That is as per the general order that applies to all staff where there is nothing to the contrary in a CBA or contract.

  13. Rita says:

    how do you calculate overtime pay for a live-out help?
    I recently asked my live-out help to spend 2 nights but we never discussed any overtime (I’ve had her for 5yrs and we’ve never had this conversation even though she used to sleep over and even travel with my family at the beginning of her employment with us). after paying her February salary she’s reminded me “what of the pay for the 2 days I slept over?” honestly, it took me by surprise and I don’t know how to go around it. please help

    1. Anne Babu says:

      You must first work out the hourly rate then multiply by 1.5 times for overtime worked on a normal working day or 2 time for overtime worked on a normal rest day or public holiday. Overtime only arises if she worked for more than her normal weekly working hours.

  14. Patrick Nzuki says:

    My boss forced me to sign two warning letters absolutely for nothing and after 2 days she fired me,then she called me to pick my benefits which was very less having worked there since july 2014 to January 2019 ; no leaves,overtime and notice and yet not given an official termination letter: Kindly assist.

    1. Anne Babu says:

      Based on what you have indicated, it appears that you have a claim for unfair termination. You should see either a labour officer or a lawyer to issue a demand letter to your former employer.

  15. Kent says:

    Hi Madam

    My ex house help gave a months notice verbally which I dated it and indicated it on her payslip. Reason for leaving was that she was pregnant. The pregnancy which she did not tell until I found out from someone else, she also found me someone to replace her which lasted only 1week. I have paid her all her dues, she was a NSSF member which I paid every month.
    she is now requesting for Notice, Maternity leave and leave dues.

    Please advise

    1. Anne Babu says:

      She is not entitled to notice pay because she resigned. A person only gets maternity leave when in employment. If she had any accrued leave days – earned but not taken, she should be paid the cash equivalent.

  16. James says:

    Hello Madam Ann
    I am currently working as a Barman in a chain of hotel that has hotels and lodges. I started in Nairobi and i worked for one and a half years receiving my house allowance,later the company sent me to one of their lodge to relieve one of the barman for a period of time, but i never came back to nairobi and they deducted my house allowance immediately claiming that they gave me a house and we are sharing the three of us. Please advice me.

    Regard James.

    1. Anne Babu says:

      You are not entitled to a housing allowance if you receive housing,

  17. Sally Todd says:

    Good morning,
    Please could I confirm whether the maximum working hours for a domestic employee are 45hrs a week or 52hrs a week before overtime must be paid? I have read that once an employee works 45 hours, they must then be paid overtime?

    I am trying to ensure I offer the correct number of breaks per day to allow for the hours worked.

    Kind regards,
    Sally

    1. Anne Babu says:

      The maximum weekly working hours are 52 for those employed to work during the day. Overtime is paid for time worked above the NORMAL weekly working hours so it depends on what your normal weekly working hours are – anything above that is subject to overtime.

  18. Helen Wangechi says:

    Am starting home cleaning services.

    1. How do I come up with a working contract which is legal bidding?
    2. Which ACTS should be included?

    1. Anne Babu says:

      Unfortunately, I’m not sure how to answer your questions. The contracts are drafted the same way as for other employees.

  19. singh says:

    Hi Ann,

    I have one doubt for the person(House help and Driver) hired employee also need to pay PAYE? and for NHIF and NSSF what is the process to pay.

    1. Anne Babu says:

      The payments are made the same way as for other employees.

error: Content is protected !!
%d bloggers like this: