Employment Law Changes in Kenya

On 8th October 2021, the Gazette Notice published the Employment Amendment Bill to address the problem of increasingly overworked employees and reduced work-life balance.

The Right to Disconnect

A similar bill was introduced in Portugal in November 2021 for all employers with 10 or more employees working under them. The bill primarily aims to amend the Employment Act of 2007 to introduce the employee’s right to ‘disconnect from the workplace’. Many of these concepts have been introduced due to the impact that COVID-19 had on labor relations worldwide. Belgium took a similar initiative as well.

The bill states that the employee has the right to disconnect themselves from the employer after work hours and must not be contacted outside of the work place unless there was an emergency. The conditions which necessitate an emergency have not been laid out in the bill yet.

In the case that the employer has more than 10 employees working for them, then the policies defining the mode of communication, such as the use of electronic devices, must be outlined with their consultation. Any exceptions in the right to disconnect or circumstances under which this right can be waived must also be defined by the employer according to the bill. If there is a Trade Union, then the policy must be outlined with their consultation.

Not Obligated to Respond to Communication after Hours

The bill further states that no employee is obligated to respond to any form of communication by the employer if they are contacted outside of work hours, and if they choose to take the call, then they must be compensated for it. What the compensation entails is not mentioned, but the employer is not allowed to punish an employee for not responding to communication outside of the workplace after hours.

‘Essential Service Providers,’ as mentioned under section 81 of the Labor Relations Act, 2007, are exempted from the right to disconnect. However, any other service may be declared an essential service by the Cabinet Secretary for Internal Security at any time.

If the suggested amendments are carried out, then Kenya will become part of the list of countries legislating on the right to disconnect. Ireland came out with a code of practice for employers that allowed all employees to switch off and disengage from work and all related forms of communication outside of work hours. (See also: Employment Benefits in Kenya)

Adoption Act

The Act also extends the right of an employee who adopts a child to one month’s pre-adoptive leave, inclusive of pay from the date of adoption of the child.

The employee must give a 14-day notice prior to the intention along with documentation proving the adoption, after which the employee is entitled to a month of fully paid leave.

This bill would definitely improve the nature of labor relations, causing employers to assess each working policy to remove risks involved that may not be in line with the right to disconnect. To facilitate the new work dynamic, employee contracts would have to be revised to make adjustments to policies.

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