In Kenya, employer-employee relationship is governed by the labour laws, either formal or informal employment. The labour laws are the set rules and regulations that govern the working relationship between the employer and employee, to protect the rights and interests of each party. These laws clearly set out the obligations and responsibilities of each party to the employment. They stipulate among other things; minimum wage, working hours, working conditions, leave days and employee rights.
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Significance of labour laws
The labour laws are put in place to ensure harmonious working relationship between the employer and employee. They help to;
- Enhance industrial relationships
- Protect workers from exploitation by employers
- Guarantee job security for employees
- Reduce industrial unrest
- Promote harmony within the organization
- Assist employees to get fair wages equivalent to their contribution
Categories of labour laws
Labour laws are divided into five Acts as enacted by the Parliament. Collectively labour laws involve the relationship between the union, the employer and the employee, and the individual labour laws that deal with the relationship between the employer and employee, without the involvement of trade unions.
- The Employment Act
- Labour Institutions Act
- Labour Relations Act
- Occupational Safety and Health Act (OSHA)
- Work Injury Benefits Act (WIBA)
Regulation of employment relations in Kenya
Employment relations in Kenya are governed by;
- Individual labour contracts
- Constitutional rights
- Statutory rights stipulated in statutes and regulations
- Rights dictated by collective agreements as well as extension orders of collective agreements
Labour laws on working hours
In Kenya, the total working hours are 45 hours per week. For employees who are employed to work at night, they may not work more than 60 hours a week. The working hours for employees who are below the age of 16, is 36 hours a week. If at any week, the employee works more than the stated hours, then the extra hours will be considered as overtime. The employer can also schedule paid overtime hours for the employee.
Overtime hours are paid, at the rate of one and one-half hourly rate on weekday, and at the rate of twice the basic hourly rate on Sundays and public holidays. The employee is entitled to one rest day per week, after working for six consecutive days, though by practice some employers award their employees two resting days a week (Saturday and Sunday).
Labour laws on leave days
Every employee is entitled to an annual leave and they can voluntarily choose to go on leave. The annual leave is 21 days without work, exclusive of public holidays and the employee is entitled to full pay. After working for 12 consecutive months for the employer, he/she is mandated to grant the employee an annual leave. Some employees may choose to accumulate their annual leave, but they must be taken within 18 months, otherwise it may be considered that the employee has forfeited the accumulated leave. Labour laws in Kenya on leave days are under section 28 of the Employment Act.
Labour laws on trade unions
Any individual aged above 16 years, can become a member of a trade union. In cases of retrenchment, the employer should inform the trade union official representing the area by issuing a notice of fewer than thirty days before retrenchment, that is the employee is a member of a trade union. If the employee is not a member of any trade union, then the employer should write to the employee directly informing them of the termination. Labour laws in Kenya on registration of an employee into a trade union fall under the Labour Relations Act of 2007.
Labour laws on the resignation
When an employee wants to resign from his/her job, he/she must inform the employer one month before they stop working, that’s if they receive monthly payments. If the employee does not give the employer the notice/letter of resignation, he/she should pay the employer the equivalent of wages for that period. If by any chance the resignation of the employee violates a contractual obligation to work, they may be liable to damages. Labour laws in Kenya on resignation are under the Employment Act, sections 14(5) and 16.
Labour laws termination of employment
Termination of employment is when the employer-employee relationship comes to an end. Either party can terminate the relationship at any moment by giving a notice/letter to the other party. If the employee wishes to terminate the employment contract, he/she must give a 30-day notice to his/her employer, if he/she is paid on monthly basis and a day/7-day notice if paid on daily/weekly basis. The same applies to the employer, unless under situations of summarily dismissal.
The party that does not give a notice, will be forced to make payment of salary in lieu of notice. The notice must be written or verbal if the employee does not know how to read or write. The following are grounds under which the employer may terminate the employment contract (unfair termination occurs when reasons for termination are not provided);
- Poor performance
- Participation in an illegal strike
- Physical incapacity (Must be confirmed by a medical doctor)
- Organization/employer’s operational requirements such as retrenchment
Labour laws on retrenchment
Retrenchment implies to loss of a job or occupation by operation of the entity and not as a result of the employee’s fault. Normally, retrenchments arise when the entity cannot sustain the compensation offered to some/all of its employees, and as a result their services are no longer needed. When selecting the employees to be retrenched, the employer should take into consideration; seniority at the time, skills, abilities and dependability of each employee in the selected group of employees to be laid off.
The employee is entitled to severance pay, as the only payment for redundancy, which is equivalent to 15 days of basic wages for each completed year of employment. An employee is not entitled to service pay if he/she is a member of a registered pension fund, gratuity or service pay scheme established under a collective agreement, or any other scheme provided by the employer whose terms are favourable. Labour laws in Kenya on retrenchment are under the Kenyan Employment Act 2007.
Types of work leaves
The labour laws in Kenya clearly state 3 types of leave that the employee is entitled to.
a. Annual leave
Every employee is entitled to an annual leave of 21 days after every 12 consecutive months, these leave days come with full pay. The employee is allowed to take their annual leave on voluntary basis. The employer can divide the employee’s annual leave into intervals with consent of the employee. The law governing annual leave can be found under section 28 of the Kenyan Employment Act.
b. Sick leave
The employee is entitled to sick leave of not less than 7 days with full pay, if they have worked for 2 consecutive months. They are also entitled to an additional 7 days with half pay, in each period of twelve consecutive months of service. The employee should notify the employer as soon as they fall sick, and give reasons why they need to take the leave, so as to be entitled to full pay.
An employee should not just wake up one morning and fail to report to work claiming to be sick, they need to produce a certificate of incapacity to work signed by a duly qualified medical practitioner or a person acting on the practitioner’s behalf in charge of a dispensary or medical aid centre. The law governing sick leave can be found under section 30 of the Kenyan Employment Act.
c. Maternity/paternity leave
A female employee is entitled to 3 months of maternity leave, whereas the male counterpart is entitled to 2 weeks paternity leave. Maternity leave in Kenya implies to 90 calendar days and not 90 working days, that is exactly 3 months. After the leave the employee has the right to resume her work. Taking maternity/paternity leave does not disqualify the employee from taking their annual leave. Most expectant female employees choose combine their maternity and annual leaves so as to spend more time with their newborns. The expectant female employee is at liberty to choose the day to begin the leave, so longer as she informs her employer seven days earlier through a written notice.
During this leave the employee is entitled to their full pay and other benefits they enjoy, and should be paid on regular basis as if they were at work. A woman is entitled to a paid maternity leave when she gets pregnant, as there are no limits as to how many times a woman can take maternity leave. No employer shall discriminate directly or indirectly against an employee or prospective employee or harass an employee or prospective employee on grounds of pregnancy.
The employer has no right to terminate an employee’s contract on grounds that she is pregnant, on maternity leave or immediately she reports back to work from maternity leave. If any doubt arises, the female employee is required to produce a certificate as to her medical condition from a qualified medical practitioner or midwife. The law governing maternity/paternity leave can be found under section 29 of the Kenyan Employment Act.
d. Other leaves
There are other leaves not indicated in the Employment Act, but are used by many organizations in Kenya.
- Compassionate leave – This leave is granted to the employee to attend a misfortune which is usually not planned for and may occur at any point in time including death, sickness or accidents of relatives and friends. Different organizations have different policies governing compassionate leave of their employees
- Compulsory leave – This is an administrative leave imposed on an employee by the employer normally to pave way for investigations into possible employment offences which may ultimately lead to the commencement of disciplinary proceedings or termination of employment
- Leave of absence – An employee may request for unpaid leave of absence from work for a period of time depending on the organization policy