Compulsory leave in Kenya
4 weeks ago
This article tackles the legal issues surrounding compulsory leave in Kenya.
Compulsory leave is an administrative leave imposed on an employee. This is normally done to pave way for investigations into possible employment offences which may ultimately lead to commencement of disciplinary proceedings.
The purpose of compulsory leave is the same as that of suspension and interdiction. The fundamental difference is that suspension and interdiction are only available to an employer where there is contractual backing. In the absence of that, however, there is nothing to stop the employer from sending an employee on compulsory/administrative leave.
On the similarity of these terms, in Elizabeth Cherono Kurgat vs Kenya Literature Bureau  eKLR, it was held that;
“The Claimant was suspended on being suspected to have committed the employment offence. It is not a material departure, that the Respondent termed this action as compulsory leave, instead of suspension or interdiction under the Terms and Conditions of Employment. All are terms that may be used by an Employer on sending an Employee on administrative leave.”
Compulsory leave is not provided for in the Employment Act, 2007 but this does not affect its lawfulness because the law does not provide for everything. In Thomson Kerongo & 2 others vs James Omariba Nyaoga & 3 others  eKLR it was held that;
“…there is no law prohibiting an employer from sending an employee on compulsory leave where the circumstances warrant it and provided it is an interim measure. Compulsory leave has the effect of only removing an employee from the workplace temporarily without interfering with his terms of service…”
- Compulsory leave is not a disciplinary penalty;
- The period of compulsory leave should not be offset against the annual leave;
In David Wanjau Muhoro vs Ol Pejeta Ranching Limited  eKLR, it was held as follows;
“186. The other notable irregularity in the procedure, related to the 30 days of compulsory leave, which were offset against the Claimant’s annual leave entitlement. The law does not contemplate the conversion of an Employee’s annual leave entitlement into anything else, other than cash. Compulsory leave is essentially a suspension of the Employee from Employment, pending investigation of the employment offence, and the outcome of the disciplinary process. Annual leave cannot be converted into suspension by whatever name that suspension may be characterized. What the Respondent did with regard to converting the Claimant’s annual leave entitlement into a period of suspension, was similar to the withholding of the Claimant’s salary, in that the Respondent was withdrawing or withholding an Employee’s benefits, to punish the Employee incrementally for perceived employment offences…
…Annual leave is voluntarily taken by the Employee, at such time as may be agreed with the Employer. It is not meant to be involuntary. In an old US case of Hart v. United States 284 F.2d 682,687, [Ct. Cl. 1960], it was held that annual leave imposed on the Employee for disciplinary reasons, constituted suspension and was improper…
…Section 28 of the Employment Act 2007, which regulates annual leave entitlement does not allow for conversion of annual leave days, into a period of disciplinary suspension.”
- The period of compulsory leave must be reasonable and justifiable, otherwise, the employee may have a case for constructive dismissal;
In Charles Gatheru Ndirangu vs Presbyterian Foundation (Sued on behalf of PCEA Mihuti Parish)  eKLR, it was held that;
“The court returns that the termination was constructive and unfair in view of the indefinite compulsory leave and in view of the respondent’s imposition of the unfair requirements against the claimant to become a member of the Church and to stabilize his family in line with the constitution of the Church.”
- The employee should be paid in full, including allowances, while on compulsory leave;
In Mary Chemweno Kiptui vs Kenya Pipeline Company Limited  eKLR, the Respondent was to pay the Claimant’s telephone allowance of Kshs. 23,000/= which was withheld when she was on compulsory leave.
- It goes without saying that disciplinary action can be commenced during the time of compulsory leave.
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