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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;

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  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;

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  • 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.

***THE END***

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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. Advocates. She has practiced employment law for 10 years. She is a repository junkie and a lover of editing.

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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.

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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.

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