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This article is a “mishmash”, for lack of a better word. I have put together my responses to various questions that I have been asked in the recent past. I have also included important points brought out in recent decisions of the Court of Appeal.

Under what circumstances can an employer suspend an employee?

It has been held, in a number of cases, that suspension is only lawful if provided in the employment contract or in the employer’s policies and that in the absence of such a provision, the employer should place an employee on administrative leave instead of suspension. This argument seems to me to be an issue of semantics.

Anyway, in a judgment delivered on 24th January 2020 in CMM vs INVESCO, Civ App No. 270 of 2017, the Court of Appeal came out strongly on this issue holding that an employer has the right to place an employee on suspension regardless of whether or not suspension is provided in the contract. The Court held,

We find that line of argument preposterous…suspension and interdiction pending investigations for alleged misconduct is ordinarily part of the disciplinary process

CMM vs INVESCO, Civ App No. 270 of 2017

Can a disciplinary hearing be conducted through documents only?

This is a reiteration of a position that the Court of Appeal has stated severally, that is, that Section 41 of the Employment Act provides for physical interaction in the disciplinary process and therefore the hearing provided under Section 41, must be an oral hearing. (New KCCC vs OAA, Civ App No. 163 of 2017, judgment delivered on 20th December 2019)

When is an employee entitled to gratuity?

Believe it or not, the post on gratuity is one of the most read in this blog, meaning, gratuity is an FAQ, to say the least. In the New KCC case, cited above, the Court of Appeal once again stated that an employee only gets gratuity if it is provided in the employment contract.

If an employee has a sick child, does that entitle them to sick leave?

No, sick leave is only taken on account of the employee’s sickness. The Employment Act does not provide for leave on account of a sick child and therefore, it is not a right by law. The employer may decide to grant a special type of leave for a sick child (family medical leave, dependant leave etc). In the absence of that, the employee may take annual leave or unpaid leave.

How do you transfer employees from one entity to another?

Where the registration status of an employer changes, for example, from a sole proprietor to a partnership or from a company limited by shares to a company limited by guarantee, there is need to transfer the employment contracts from the old entity to the new one.

The answer to how to go about doing the transfer is long because each situation should be looked at bearing in mind its own unique facts. However, generally, there needs to be a written agreement signed by the current employer, proposed new employer and the employee where the employee consents to have their employment transferred to the new employer on the same or better terms and conditions of employment and the new employer consents to this and specifically agrees to recognize that the employee’s years of service with the current employer and also to take over any liabilities or claims arising from the employee’s employment with the current employer.

The employee should be issued with a new contract by the new employer capturing their terms and conditions of employment.

If there is a trade union involved then, needless to say, the union should be consulted on behalf of their members.

Where there is a transfer of business or undertaking, the process is much more complicated and perhaps I’ll address this in a future article.

***THE END***

PS: If you would like me to write on a specific topic, please indicate the topic in the comment section below.

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 over 12 years and her employment law practice has been recognized by the prestigious Chambers & Partners. Anne cares about employers and their labour issues.


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Comments

  1. Julliet says:

    Please write about:
    1. Minimum wage and the remedies when an employer is found not to be compliant. Do they remedy just for that month or are they required to pay arrears?

    2. Company ABC has outsourced cleaning services to company XYZ. Company XYZ is not paying workers on time and not only that the owner is sending salaries via mPesa (no payslip no statutory compliance). Is company ABC liable in the event that the employees sue?

  2. Kelvin says:

    Thanks Anne, for your very informative article s on Employment law.

    Please would you please write an article on Employee negligence in regard to performance of employment duties. Also your perspective in disapproving or defending an accusation of negligence by both employees and employers.

    I am interested to find out if advancing a case of “reasonable and customary” conduct/practice is acceptable in proving a lack of negligence and whether there’s accompanying case precedence.

    Thank you

  3. james says:

    Thanks a lot

  4. Hi Ann.

    Thanks for the Good Work.

    Kindly address the implications of the new Data Protection Act of 2019 (GDPR) and its impications on HR.

    Thanks

    1. Anne Babu says:

      Hi Martin, I’ve done a post on data protection. Do a search on the site and you’ll find it.

  5. Edna says:

    This is quite informative in light of what is currently going on in the country i.e. the KQ case. Thank you for finding time to educate and enlighten us. Is it possible for you to also comment on Constructive Dismissal? What it is? Is it legal or common practice? etc.

    1. Anne Babu says:

      Hi Edna, I’ve done an article on constructive dismissal. Do a search on the site and you’ll find it.

  6. HEZRONE OGUTU RACHILO says:

    Dear Anne,

    Am a very frequent reader of your articles and I can never thank you enough. Kudos to you and the work you do.

    I have a few areas I would like to hear from you on:

    1. Role of line managers in labour and employee relations
    2. What is the role of employee relations in employee recruiting and separations?
    3. Whats the implication of data protection act and rules on employee relations?
    4. What are the legal requirements and or best practices of employee benefits?

    You may pick any topic and help us explore.

    Regards,

    Hzerone

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