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This article tackles the legal issues surrounding compulsory leave in Kenya.

Definition

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.

download (2)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 [2014] 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 [2017] 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…”

  1. download (3)Compulsory leave is not a disciplinary penalty;
  2. The period of compulsory leave should not be offset against the annual leave;

In David Wanjau Muhoro vs Ol Pejeta Ranching Limited [2014] 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.”

  1. 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) [2016] 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.”

 

  1. The employee should be paid in full, including allowances, while on compulsory leave;

In Mary Chemweno Kiptui vs Kenya Pipeline Company Limited [2014] eKLR, the Respondent was to pay the Claimant’s telephone allowance of Kshs. 23,000/= which was withheld when she was on compulsory leave.

  1. It goes without saying that disciplinary action can be commenced during the time of compulsory leave.

***THE END***

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This article 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 over 10 years. She is a repository junkie and a lover of editing.

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Comments

  1. kennedy obiewa says:

    Hi,

    Thanks for this timely clarification.

    Is it proper to send an employee on suspension without pay as a disciplinary measure after concluding the process and finding him culpable?

    1. Anne Babu says:

      Yes, if it’s provided as a disciplinary penalty in the contract/HR Manual.

      1. Patrick Thuo says:

        A quick confirmation, compulsory leave should be paid. Right? That and suspension to pave way for investigations.

        1. Anne Babu says:

          Compulsory leave should be paid. Payment during suspension is dictated by the terms of the policy.

  2. Diana Kabiru says:

    “It goes without saying that disciplinary action can be commenced during the time of compulsory leave.”

    Does it mean that the staff sent on compulsory leave and has a disciplinary matter to undergo will be only coming to the office when the matter is being heard, then wait for the decision to be made. Will it be documented in the suspension letter that the staff has been sent on leave and will only come to the office on the said hearing dates. Has the staff got the right to claim for transport to and from the office.

    1. Anne Babu says:

      Yes to all. As regards transport allowance, it depends on company policy.

  3. Shapayah says:

    This is a nice read and well done just on time. Thank you for sharing.
    Question;
    Does the law specify the duration or period of the suspension or compulsory leave as you described? And if yes, what the permissible period for the leave?

    1. Anne Babu says:

      Thank you for the compliment. There’s no prescribed period.

  4. Emmanuel Mwanda Wekesa says:

    Is it lawful to issue and employee with a Notice of termination and force the employee to take his/her accumulated annual leave previously not taken?

    In this case, the action viewed to be taken as a disciplinary measure in that his/her position has been replaced by another person in the same capacity.

    As it is considered the employee at end of the notice period has lost his annual leave entitlement via a calculated move to reduce to set off the leave balances with the notice unwillingly.

    1. Anne Babu says:

      Such an action is unlawful; annual leave should not be used to offset notice period unless with the consent of the employee.

      1. Patrick Thuo says:

        I agree it is unlawful but I have seen it happen. In places where the HR Manual doesn’t have an allowance of paying leave days not taken, the last working day is pushed off until the leave days are fully accrued. So, technically the leave days are paid but they are billed as normal annual leave would be paid.

        Meaning there is no loss to the employee since they can already have started working elsewhere thus double earning.

        1. Anne Babu says:

          The employee should be in agreement because those are their leave days; it is not something that should be imposed as is sometimes done.

  5. hellen says:

    awesome information about compulsory leave

  6. halimo says:

    thank you very much

  7. Cedrick Madona says:

    Best ever advice

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