Summary of Employment Laws in Kenya

SUMMARY OF EMPLOYMENT LAWS IN KENYA
The legal framework governing employment relations in Kenya composes of;
 The Constitution of Kenya
 The Employment Act
 The Labour Relations Act
 The Labour Institutions Act
 Occupational Health and Safety Act
 Work Injury Benefits Act

THE CONSTITUTION OF KENYA
Article 41 entitles every worker to fair labour practices and guarantees to every worker the right to;
i. Fair remuneration;
ii. Reasonable working conditions;
iii. Form, join or participate in the activities and programmes of a trade union; and
iv. Go on strike

Vide Article 41 employers also have the right to form or join employers’ organizations and to participate in the activities of such organizations. Such trade unions and employers’ organizations have the right to determine their own administration and activities and also to engage in collective bargaining.
Article 162 empowers the Parliament to establish a court of the status of a High Court that shall have the mandate of determining matters relating to employment and labour relations.

THE EMPLOYMENT ACT OF KENYA
This Act outlines the substantive rights of workers and provides for the basic conditions of employment. The Act also regulates the employment of children.

Forced labour

Section 4 of the Act prohibits the use of forced labour and makes it an offense for a person to use or to assist another person in recruiting, trafficking or using forced labour. It defines forced labour as work which is not done voluntarily and one that is done under the threat of penalty.

Forced labour however does not include;
i. Work or service exacted by virtue of compulsory military service laws and for work of a purely military nature.
ii. Work or services which forms part of the normal civic obligations of the citizens.
iii. Work or service exacted from a person as a consequence of a conviction by a Court of law provided the work is supervised by a public authority and not private persons.

iv. Work or service exacted in cases of an emergency such as in the event of war, disaster or threat of a calamity.
v. Minor communal services performed by the members of the community in the direct interest of the said community provided the members of the community or theirrepresentative.

Discrimination
Section 5 of the Act requires employers to eliminate discrimination in the employment policy and practice and also to promote equal opportunity.

This requirement applies to both the employees and the prospective employees in respect of recruitment, training, promotions, terms and conditions of employment, termination of employment or any other matters arising in the course of employment.

This requirement means that no one is to be discriminated directly or indirectly on grounds of race, sex, colour, language, religion, political or other opinion, nationality ethnic or social origin,disability, pregnancy, mental status or HIV status. The Act however distinguishes discrimination
from affirmative action and preference based on an inherent requirement of a job.

Sexual harassment is contrary to the Employment Act in Kenya
According to Section 6 of the Act, an employee is sexually harassed if the employer of that employee or a representative of that employer or a co-worker does either of the following;

Directly or directly requests for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express
i. Promise of preferential treatment in employment;
ii. Threat of detrimental treatment in employment;
iii. Threat about the present or future employment status of the employee;

Uses language whether written or spoken of a sexual nature.

Uses visual material of a sexual nature.

Shows physical behavior of a sexual nature which directly or indirectly subjects theemployee to behavior that is unwelcome or offensive to that employee and that by its nature has a detrimental effect on that employee’s employment, job performance or job satisfaction.

Conditions of employment

The Act provides that after 3 months a casual employment automatically converts to a contract of service with monthly payment.

Section 26 requires every employee to be given at least one day of rest for every seven days of work. Under Section 28, every employee is entitled to a paid leave of 21 work days after every one year of service. The Act also provides for maternity leave and sick leaves.

Section 31 mandates an employer to provide reasonable housing accommodation to the employees or in the alternative to pay the employees such sufficient sum to be used for obtaining housing accommodation.

An employer is also mandated to ensure there is sufficient supply of water at the place of work.

TERMINATION OF EMPLOYMENT UNDER THE EMPLOYMENT ACT IN KENYA
The Act prohibits employees of terminating employees unfairly and requires employers to give reason for termination. There are different types of termination namely; termination by notice, summary dismissal and termination on account of redundancy

Where the termination is by notice, either the employer or the employee is required to give notice of termination of employment contract. The duration of notice depends on the intervals ofpayment. Either party of the employment contract is entitled to payment in lieu of notice.

However, where the employer waives the notice period, the employer shall pay the employee the remuneration of the notice not served.

Summary dismissal arises where an employee is terminated without notice or with a shorter notice. This arises where the employee is involved in gross misconduct or has fundamentally breached the conditions of the employment contract.

LABOUR RELATIONS ACT, KENYA
It provides for the registration, regulation and management of trade unions, employer organizations or federations. It promotes and protects freedom of association of employees and employers.

EMPLOYMENT AND LABOUR RELATIONS COURT ACT
It establishes the Employment and Labour Relations Court. It gives it exclusive original and appellate jurisdiction to hear and determine all disputes relating to employment and labour relations.

Please contact us on silvana@swkadvocates.com for the following services

1. Drafting of HR Manual/Policy
2. Drafting/Reviewing of Disciplinary Policy
3. Legal Audits
4. Drafting of Employee Contracts
5. Actions relating to Employees