This article explores the Employment Act of Kenya (Chapter 226), outlining the rights of both employees and employers. It aims to provide a comprehensive guide for Kenyan employees to understand and apply the Act, ensuring a fair and just working environment.
Core Principles of the Employment Act
- Prohibition of Forced Labour: The Act strictly prohibits any form of forced or compulsory labor, with exceptions for civic obligations, court-ordered work under public authority supervision, emergencies threatening public well-being, and minor community services agreed upon by members.
- Discrimination in Employment: The Act champions equality of opportunity and prohibits discrimination based on race, color, sex, language, religion, political or other opinion, nationality, ethnicity, disability, pregnancy, mental status, or HIV status. It covers all aspects of employment, from recruitment to termination. Affirmative action measures promoting equality are permitted, as is employing citizens based on national employment policy, and restricting access to certain jobs for state security reasons. Equal pay for work of equal value is mandated.
- Sexual Harassment: The Act defines sexual harassment and mandates employers with 20 or more employees to issue and communicate a policy statement against it.
The Employment Relationship
- Contract of Service: Employment must be governed by a contract, adhering to the Act’s provisions. Contracts for three months or more, or for work exceeding three months, must be in writing.
- Employment Particulars: Written contracts must detail key employment information within two months of starting work, including: employee details (name, age, address, sex), employer’s name, job description, start date, contract duration, work location, hours of work, remuneration details, payment frequency, continuous employment period, leave entitlements, sick leave provisions, pension details, notice periods, contract duration, work location (including outside Kenya), collective agreements, disciplinary rules, grievance procedures, and any other prescribed matters.
- Changes to Employment Particulars: Any changes to the initial particulars must be communicated in writing to the employee, with the contract revised accordingly.
- Accessibility of Documents: Employees must have reasonable access to any referenced documents, like disciplinary rules or collective agreements.
- Employee Rights Awareness: Employers must prominently display a statement outlining employee rights under the Act.
- Enforcement: Employees can file complaints with a labor officer if an employer fails to provide required statements. The Industrial Court can determine missing particulars, which then become binding.
Protection of Wages
- Payment of Wages: Employers must pay the full amount of wages earned directly to employees in Kenyan currency. Payment methods include cash, bank transfer, cheque, or authorized representative.
- Payment Timing and Location: Payment should occur on working days, during working hours, at or near the workplace. Payment in places selling alcohol is prohibited except for employees working there.
- Deductions from Wages: Allowed deductions include: contributions to approved schemes (provident fund, superannuation), damage to employer’s property due to employee’s willful default, unauthorized absence, cash shortages due to employee’s negligence, overpayment of wages, deductions authorized by law or agreements, employee-requested deductions without employer benefit, and loan repayments (capped at 50% of wages after other deductions).
- Itemized Pay Statements: Employers must provide written itemized pay statements to employees, except for casual employees, piece-rate workers, or those employed for under six months.
- Security Bond for Wages: Non-Kenyan or non-resident employers may be required to pay a security bond equivalent to one month’s wages for all their employees.
Termination and Dismissal
- Notice of Termination: Unless otherwise specified in the contract, notice periods depend on wage payment frequency: daily wages require no notice, periodic wages under a month require written notice for the following period, and monthly or longer wages require 28 days written notice.
- Payment in Lieu of Notice: Either party can terminate the contract without notice by paying the other party the equivalent remuneration for the notice period.
- Redundancy: Termination due to redundancy requires specific procedures, including notifying the union/labor officer, considering seniority and skills in selection, paying due leave, providing notice or payment in lieu, and paying severance pay (at least 15 days pay per year of service).
- Misconduct or Poor Performance: Termination requires prior explanation and a hearing for employee representations. Summary dismissal is allowed in cases of gross misconduct.
Protection of Children
- Worst Forms of Child Labour: Employing children in activities considered worst forms of child labor is prohibited. The Minister, in consultation with the Board, defines these activities.
- Time Restrictions: Employing children in industrial undertakings between 6:30 PM and 6:30 AM is prohibited, except in emergencies.
Disputes Settlement Procedure
- Complaints and Jurisdiction: Employees can complain to a labor officer or the Industrial Court in cases of contract breaches, disputes, misconduct, neglect, ill-treatment, or injury. Only the Industrial Court has jurisdiction over these matters.
- Remedies for Unjustified Dismissal: Labor officers can recommend remedies like payment of owed wages or reinstatement.
- Certificate of Service: Employers must issue a certificate of service upon termination for employments lasting four weeks or more.
This article provides a general overview of the Employment Act of Kenya. For specific legal advice, consult with a qualified legal professional.