Employment Laws in Kenya

Labour laws in are designed to regulate the relationship between employers and employees, ensuring fair treatment, safe working conditions, and the protection of fundamental rights. The labour laws are derived from multiple sources, including the Constitution of Kenya 2010, Acts of Parliament, subsidiary legislation, and international conventions. These laws aim to protect workers' rights while balancing employers' interests, addressing contemporary economic and social challenges through a reformed legal framework.

Constitutional Framework

• The Constitution of Kenya 2010 provides foundational protections for labour rights.
• Article 27 guarantees equality and freedom from discrimination on grounds such as race, sex, pregnancy, and disability.
• Article 41 specifically addresses labour relations, granting every worker the right to fair labour practices, fair remuneration, reasonable working conditions, participation in trade unions, and the right to strike. Employers are also granted rights to join and participate in employer organizations.
• The Constitution further establishes the Industrial Court as a superior court to adjudicate labour disputes.

Key Labour Statutes

In 2007, Kenya undertook a comprehensive review of its labour laws, repealing six outdated statutes and enacting five new ones to align with modern economic realities and international standards, including the 1998 ILO Declaration on Fundamental Principles and Rights at Work. The enacted statutes are as follows:

• Employment Act 2007:

Sets minimum terms and conditions of employment, covering contracts, wages, leave, termination, and prohibitions against forced labour and discrimination.

• Labour Institutions Act 2007:

Establishes regulatory bodies like the National Labour Board and Wages Council to govern labour relations.

• Work Injury Benefits Act 2007:

Provides for compensation for workplace injuries, though some sections were annulled by the High Court for being unconstitutional.

• Labour Relations Act 2007:

Protects freedom of association, collective bargaining, and the establishment of trade unions and employer organizations.

• Occupational Safety and Health Act 2007:

Ensures safe and healthy working environments, establishing the National Council for Occupational Safety and Health.

Additionally, the Industrial Court Act No. 20 of 2011 elevates the Industrial Court to the status of the High Court, empowering it to handle employment disputes.

International Conventions and Treaties

As a member of the International Labour Organization (ILO), Kenya has ratified key conventions, including Conventions Nos. 87 and 98 (freedom of association and collective bargaining) and Nos. 29 and 105 (prohibition of forced labour). These obligations ensure that Kenyan laws align with global standards on workers’ rights.

Types of Workers

The Employment Act categorizes workers into three types:

• Permanent Workers: Have written contracts or are paid monthly, serve a probation period (1–3 months), and require one month’s notice for resignation or termination.
• Casual Workers: Work for short periods (less than 24 hours at a time), are paid daily, and can be dismissed with one day’s notice.
• Fixed-Term Contract Workers: Employed for a specific duration, with entitlements based on the contract or collective bargaining agreements. Contracts of three months or more must be in writing.

UNDERLYING PRINCIPLES OF EMPLOYMENT

Employment relationships are contractual, requiring mutual agreement on terms. Employers must provide written contracts for engagements of three months or more, and terms cannot fall below statutory minimums. Collective bargaining agreements may apply for unionized workers.

     A. Legal Duties of Employees

Employees must arrive on time, perform lawful tasks, avoid intoxication or abusive behavior during work hours, and adhere to workplace rules. Failure to comply may result in dismissal.

     B. Discrimination in Employment

Section 5 of the Employment Act prohibits discrimination in recruitment, training, promotion, or termination based on race, sex, religion, disability, pregnancy, HIV status, or other grounds. This aligns with Article 27 of the Constitution, ensuring equal treatment.

     C. Sexual Harassment

The Employment Act guarantees a workplace free from sexual harassment, defined as unwanted sexual advances, language, or behavior that affects job performance or well-being. Employers with over 19 employees must issue a policy statement on sexual harassment, outlining its definition, prevention measures, complaint procedures, and confidentiality assurances.

     D. Prohibition Against Forced Labour

Forced labour, including child labour, is illegal under Kenyan law and ILO Conventions Nos. 29 and 105. This includes any work exacted under threat or penalty without voluntary consent, excluding compulsory military service.

     E. Wages and Salary

Workers are entitled to full payment in Kenyan shillings, with payslips detailing earnings and deductions. Minimum wages are set by the Employment Act, and permanent workers receive housing allowances or accommodations. Wages are paid on working days, not in places selling liquor, unless the worker is employed there.

     F. Deductions from Wages

Employers cannot deduct wages as punishment. Permissible deductions include absences without leave, contributions to retirement funds, damages for lost goods, or loan repayments, but total deductions cannot exceed two-thirds of wages. Statutory deductions include NSSF, NHIF, and PAYE.

     G. Working Hours

Normal working hours are 48 hours per week (8 hours daily) over a six-day week. Watchmen and similar roles may work up to 60 hours weekly. Children under 16 are limited to 6 hours daily, and all workers are entitled to one rest day per week.

     H. Overtime Payment

Overtime, exceeding regular hours, requires 24 hours’ notice and cannot be forced. It is compensated at 1.5 times the hourly rate, or double on rest days/public holidays. Maximum overtime is 116 hours (144 for night workers) over two weeks.

     I. Types of Leave

• Annual Leave: 21 working days after 12 months of service.
• Sick Leave: 7 days full pay, then 7 days half pay after two months of service, with a medical certificate.
• Maternity Leave: 3 months with full pay, requiring 7 days’ notice.
• Paternity Leave: 2 weeks with full pay.
• Public Holidays: Paid days off include gazetted holidays like Labour Day and Christmas.

     J. Health and Safety

The Occupational Safety and Health Act mandates clean, safe workplaces with adequate water, ventilation, lighting, sanitation, and protective equipment. Employers must label hazardous substances, provide training, and ensure first aid availability. Workers must cooperate with safety rules and use protective gear.

     K. Termination of Employment

Termination can occur via employer action, redundancy, resignation, retirement, or death. Notice periods depend on pay frequency (e.g., one month for monthly-paid workers). Employers must have just cause, such as incapacity or misconduct, and provide terminal benefits.

     L. Summary Dismissal

Summary dismissal for gross misconduct (e.g., absenteeism, intoxication, or criminal acts) requires no notice. Grounds include willful neglect, abusive behavior, or failure to obey lawful commands.

     M. Redundancy

Redundancy procedures involve notifying unions or labour officers, paying earned leave, one month’s notice or wages in lieu, and severance pay based on service length.

     N. Grievance Procedure

Non-unionized workers report grievances to supervisors, escalating to management or labour offices if unresolved. Unionized workers use shop stewards to mediate with employers. Unsettled disputes may go to the Industrial Court within 3 - 6 years, depending on the issue.

     O. Certificate of Service

Upon termination after four months of service, workers receive a certificate detailing employment history, but employers are not obligated to provide references.

     P. Gratuity

Gratuity, an optional ex gratia payment for over five years of service, is distinct from mandatory pension schemes, which both employer and employee contribute to for retirement.

The Industrial Court Act No. 20 of 2011

The Industrial Court, equal in status to the High Court, adjudicates labour disputes. It operates under a Registrar at the National Social Security House in Nairobi. Claimants file statements of claim, respondents reply, and judges issue awards after hearings. Parties can represent themselves or use advocates/unions. Appeals go to the Court of Appeal.

Common Employment Disputes in Kenya:

    i. Unfair Termination and Wrongful Dismissal

• Employees often challenge dismissals that do not follow due process or lack valid reasons.
• Wrongful termination includes failure to issue proper notice, unfair dismissal based on discrimination, or unjustified summary dismissal.
• Employees can seek remedies such as compensation, reinstatement, or damages through the Industrial Court.

    ii. Non-Payment or Underpayment of Wages

• Some employers fail to pay salaries on time or underpay employees below the minimum wage set by the government.
• Disputes may also arise from unpaid overtime, lack of annual salary increments, or failure to pay promised bonuses.
• Employees can report wage-related disputes to the Labour Office for intervention.

    iii. Unlawful Salary Deductions

• The Employment Act strictly regulates wage deductions. Employers can only deduct statutory contributions (NSSF, NHIF, PAYE) and other agreed-upon amounts.
• Some employers unlawfully deduct wages as punishment or fail to remit statutory deductions, leading to disputes.

    iv. Workplace Discrimination and Harassment

• Employees may face discrimination based on gender, age, disability, HIV status, religion, or other protected characteristics.
• Sexual harassment complaints are common, particularly where employers fail to implement workplace policies against harassment.
• Victims can report cases to the Labour Office, human rights organizations, or seek redress in court.

     v. Redundancy and Severance Pay Disputes

• Employers must follow legal redundancy procedures, including issuing notices and paying severance pay.
• Disputes arise when employers declare employees redundant without due process or fail to compensate them fairly.

    vi. Workplace Safety and Injury Compensation

• Employees often file claims for workplace injuries or occupational diseases under the Work Injury Benefits Act (WIBA), 2007.
• Disputes arise when employers fail to compensate workers for injuries, medical expenses, or lost wages.
• Employees can claim compensation from the employer or report to the Directorate of Occupational Safety and Health Services (DOSHS).

    vii. Unpaid Leave and Leave Denials

• Employers must provide employees with paid annual leave, sick leave, maternity leave, and paternity leave.
• Disputes arise when employers deny leave requests, fail to pay employees during leave, or force employees to forfeit leave days.

    viii. Breach of Contract

• Employers failing to honor contractual terms, such as job descriptions, promotions, or benefits, can lead to disputes.
• Employees can enforce contract terms through labour tribunals or the Industrial Court.

    ix. Trade Union Disputes

• Disagreements between employers and trade unions over collective bargaining agreements (CBAs), worker representation, or union membership rights.
• Employees have the right to join and participate in trade unions without employer interference.

Resolution of Employment Disputes

Disputes can be resolved through:

1. Internal Workplace Mechanisms - Raising concerns with HR, managers, or internal grievance committees.
2. Labour Office Mediation - Reporting disputes to the Ministry of Labour for intervention.
3. Industrial Court Proceedings - Filing claims with the Employment and Labour Relations Court (ELRC).
4. Trade Union Intervention - Seeking representation from a registered trade union.