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The Pandemic Response and Management Bill, 2020 (Sakaja Bill) is coming up for second reading on 20th May 2020. I am concerned with the proposed changes to the Employment Act, 2007.

The proposal is as follows:-

  1. (1) Where a pandemic adversely affects the ability of an employer to pay salaries or wages— 
    (a) notwithstanding the provisions of the Employment Act, an employer shall not terminate a contract of service or dismiss an employee; and  
    (b) an employer shall not coerce an employee to take a salary cut. 
    (2) Despite subsection (1), where an employer is unable to meet his obligations to pay salaries or wages, the employer shall permit an employee to take leave of absence without pay for the duration of the pandemic.

(3) The Cabinet Secretary responsible for matters relating to labour may with the approval of Parliament, develop measures to cushion employers and employees during the pandemic.

I present the following 6 points in opposition to the proposals:-

  1. Our labour laws are sufficient to protect employees against unfair labour practices. We have laws (including many decided cases) on unpaid leave, salary cuts and redundancy.
  2. The wording of the proposal suggests that an employee is supposed to apply for unpaid leave. This is not feasible. The law, as it is, is that the employer should consult employees on proposals for unpaid leave or salary cuts (Section 10(5) of the Employment Act).
  3. What is ‘the duration of the pandemic’?
  4. Is it not an unfair labour practice to have an employee on unpaid leave for what, in reality, is an unknown period?
  5. It provides false security to an employee.
  6. If passed, the effect is to shift the burden of social protection and employment protection from the State to employers.

***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 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. Paul mutuku says:

    I concur with you

  2. Daniel says:

    Hello Anne
    Many thanks for this post. it is obvious the proposed changes are both populist and counterproductive and drafted by people with very little understanding of private sector dynamics, especially the SMEs that are the backbone of the economy.
    It is futile to purport to protect an employee’s job or salary in a failing or collapsing company. The laws ought to encourage a cordial relationship between businesses and employees to strike a common understanding whenever there is a crisis like the one obtaining currently.
    This changes to the Employment Act are just a waste of time and will end up punishing the same people they are purportedly meant to protect

  3. Juliet says:

    Thank you for this! The proposed bill has been a topic of discussion in many of our HR forums and it has been very confusing. But I do agree the proposed changes SHOULD NOT be passed.

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