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This article examines the proposals contained in the Employment Act (Amendment) Bill, 2019The Bill has been released for comments from the public by the Kenya Law Reform Commission. Note – it has not been officially published in the Kenya Gazette. 

It has interesting new additions like education leave, parental leave, data protection,  employee surveillance, maternity leave on stillbirth, transfer of undertakings etc…

  Proposal   My comments
1. Casual employee

A piece rate worker is not a casual employee.

I have always taken this to be the position.
2. Employee

Means a person who works in the service of the employer under an express or implied contract of service, under which the employer has right to direct and control the details of work performance and excludes contract for services.

3. Contract for service

Means contract for a specified piece rate of work.

A contract for services is a consultancy contract or an independent contractor engagement. Including the words “piece rate of work” will bring unnecessary confusion.
4. Part-time employee

Means an employee whose normal hours of work, are less than the normal hours of work of a comparable full-time employee and who is not a full-time employee with reduced hours.

5. Term contract (aka fixed-term contract)

Means a contractual relationship between an employee and an employer for a specified period.

6. Overtime

Any hours of work in excess of the normal hours of work.

An employee should not be asked to work overtime unless this is agreed.

The employee should nonetheless not work more than 12 hours per day.

No change from current position.

This is new.

7. Employment of foreigners

An employer shall not employ a foreign national whose residency status in the country has not been regularised in accordance with the Kenya Citizenship and Immigration Act or any other relevant law.

According to Section 45(2) of the Kenya Citizenship & Immigration Act, it is the duty of every employer to apply for and obtain a work permit or a pass conferring upon a foreign national the right to engage in employment before granting him employment.
8. Sexual harassment policy

An employer with 5 or more employees should put in place a sexual harassment policy

This is currently mandatory for employers with 20 or more employees.
9. Restrictive clauses

A provision in a contract of service whose effect is to restrain an employee from exercising a lawful profession or occupation or use of knowledge and skills gained during employment upon termination of such contract of service is void.

A contract of service may limit an employee from disclosing any confidential information or trade secrets acquired in the course of engagement for a reasonable period.

Currently, the enforcement of such clauses (non-compete) falls under the Contracts in Restraint of Trade Act under which the court may enforce such clauses if they are reasonable. The proposed amendment makes such clauses all together void.
10. Particulars of employees

The proposal is to do away with the requirement to include the age and sex of an employee in the employment contract.

11. Disciplinary rules and grievance procedures

To make it mandatory for all employers to have these policies.

Currently, only employers with 50 or more employees are required to have these policies.
12. Transfer of undertakings

Whenever there is a transfer of an undertaking (a business), the employees of the transferor automatically become employees of the transferee, they do not lose their previous years of service or any of their rights, duties or obligations.

Before the transfer, the transferor is expected to consult the affected employees and to notify them of details such as the approximate date of the transfer and the reasons for the transfer.

Any recognition or collective agreement entered into between the transferor and the trade union of the affected employees and in force immediately before the transfer shall continue in force between the transferee and the trade union of the affected employees for a period of 12 months after the date of the transfer or until the date of its expiry, whichever is the earlier.

These proposals are ok since they are aimed at protecting employees in the event of a transfer of undertakings.

The last bit, however, on the continuation of a CBA for 12 months after the date of the transfer or until the date of its expiry, whichever is the earlier, should be deleted because the term of a CBA is indicted in the CBA and there is no reason why that term should not be retained.

13. Death of employer

The employment contract terminates on the death of the employer and any claims for terminal dues shall be made to the deceased’s personal representative.

If the business does not carry on after the death of an employer, the workers shall be deemed to have been terminated on account of redundancy.

The Act currently deals only with the death of an employee.

The redundancy bit should not be passed. If it does, it means the employees will be entitled to severance which will have to be paid from the deceased’s estate.  This is very unfair to the deceased’s beneficiaries. In any event, the death of an employer is not a ground for declaring a redundancy. A contract automatically terminates on the death of either of the parties!

14. Night work

Night work means work performed between 10:00 pm and 06:00 am.

An employer may only require an employee to perform night work if so agreed, and if—

(a) the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and

(b) transportation is available between the employee’s place of residence and the workplace at the commencement and conclusion of the employee’s shift.

An employer who requires an employee to perform night work on a regular basis must –

(a) inform the employee –

(i) of any health and safety hazards associated with the work that the employee is required to perform; and

(ii) of the employee’s right to undergo a medical examination concerning those hazards – (i) before the employee starts, or within a reasonable period of the employee starting, such work; and

(ii) at appropriate intervals, while the employee continues to perform such work; and

(c)  transfer the employee to suitable day work within a reasonable time if-

(i) the employee suffers from a health condition associated with        the performance of night work; and

(ii) it is practicable for the employer to do so.

15. Flexible working time

An employee may apply for flexible working time which application may only be denied on the grounds provided which include the inability of the employer to re-organise work among the existing staff.

16. Maternity leave on stillbirth

One month maternity leave

It has been argued that it’s good practice to allow such employees to take the full maternity leave.
17. Paternity leave

Shall be granted only upon production of a notification of birth.

18. Adoption leave

One month, for those who adopt children below 2 years old.

19. Parental leave

Where a child is born as a result of a surrogate motherhood agreement, an employee who is a commissioning parent shall be entitled to parental leave of 2 months from the date the child is born.

20. Sick leave

Increased to 30 days on full pay and 15 days on half pay.

21. Education leave

10 days with full pay for those enrolled for a course in a recognized learning institution which the employer is aware of.

22. Reasons for dismissal

The employer is expected to provide a written statement giving particulars of the reasons for dismissal.

23. Service pay/gratuity

To be computed at the rate of not less than 15 day’s pay for every year worked.

The rate is currently not provided though courts have been applying the rate that has now been proposed.
24. Certificate of retirement

Due to an employee who retires normally or on medical grounds.

25. Constructive dismissal

Deemed to occur where the employer conducts themselves in a manner calculated to make working conditions intolerable and disregards essential terms of service which damages the relationship of trust and confidence.

26. Suspension

Limited to 14 days with full pay during investigations.

There should be a right to extend this period for good cause because some investigations take longer than 14 days, for example, where a large audit has to be done.
27. Protection of employee’s personal data

An employer shall process personal data lawfully and fairly, and use it only for reasons directly relevant to the employment and for the purposes in which such personal data was originally collected.

Personal data that is collected in connection with technical or organizational measures to ensure the security and proper operation of automated information systems shall not be used to control the behaviour of employees.

Every employer has a duty to regularly assess their data collection practices to see how they can as far as possible reduce the amount of personal data collected and improve ways of protecting the privacy of employees.

An employer shall not collect or process personal data concerning an employee’s sex life or sexual orientation; political, religious or other beliefs and membership in a trade union, unless such personal data is directly relevant to an employment decision and in conformity with any national legislation.

No employer shall use polygraphs, truth verification equipment or any other similar testing procedure in the context of employment.

Where an employee is monitored, the employee has a right to be informed in advance of the reasons for monitoring, the time schedule, the methods and techniques used, the nature of data to be collected.

Secret monitoring of an employee is permitted only if –

(a) it is in conformity with a national

legislation; or

(b) there is reasonable grounds to believe commission of a criminal activity.

Continuous monitoring of an employee is permitted only if required for health and safety or the protection of property.

Personal data shall not be communicated for commercial or marketing purposes without the employee’s informed and explicit consent.

“Personal data” means any information related to an identified or identifiable employee, former employee, or an applicant to employment.

“Monitoring” includes the use of electronic devices or any other communication equipment, for the purpose of establishing identity and location, or any other method of surveillance.

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Before you leave, you should know that the housing levy has taken effect according to newspaper notices published today. You can read more about the housing levy in this article. UPDATE: I have seen a press statement from FKE to the effect that GOK has no right to demand compliance due to stay orders currently in force.

***THE END***

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. She is a repository junkie and a lover of editing.

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Comments

  1. Esther says:

    Hi Anne,

    The clause on overtime indicates that the employer shall not require an employee to work overtime except in accordance with an agreement. Does this implies that overtime work should be provided for in the contract of employment? and if it is not then we should have addendum to the contract providing for it?

    1. Anne Babu says:

      Correct. Note that these are proposals only.

  2. Wangombe says:

    On sick leave, what is the current applicable law in the situation of prolonged illness, say 1 month, intermittent but over a period of two months?

    1. Anne Babu says:

      Beyond the sick leave period, the employer can put the employee on unpaid leave or terminate the employment if it appears that the employee will not be able to return to work soon.

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