LEGISLATION GOVERNING EMPLOYMENT IN KENYA

THE EMPLOYMENT ACT: CHAPTER 226 (Revised 1984)

Specific objectives of the topic:

At the end of this topic, the trainee should be able to:-

Discuss the legislation relevant to employment in Kenya.
Apply the provisions of the legislation to given practical situations in the organisation.

The Employment Act is an Act of Parliament to consolidate with amendments of the law relating to employment and for matters incidental thereto and connected therewith.

Exemptions to the Provision of the Actm

The Provisions of the Act shall not apply to: –

The Armed Forces or the reserve
Kenya Police, Kenya Prisons Service, Administration Police Force
National Youth Service
Such person or class such trade or industry or such public body as the Minister may exempt.

Definition

The Act defines a casual employee as an individual the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than 24 hrs at a time.

A child is any individual who has not attained the age of 16 years.

A contract of service: – an agreement, whether oral or written, and whether expressed or implied, to employ or to serve as an employee for any period of time and includes a contract of apprenticeship and indentured learnership.

Piecework: -means any work the pay for which is estimated by the amount of work performed irrespective of the time occupied by its performance.

Conditions of Employment

Payment disposal and Recovery of Wages, Allowances

The entire amount of the wages earned by and payable to an employee shall be paid to him directly in the currency of Kenya. Provision may be paid with the consent of the employee for such an amount to be paid into; an account at a bank, by cheque, postal or money order, to any person (in the absence, but with consent of the employee).

Payment of wages shall be made on a working, during working hours, at or near to the place of employment. Wages payment shall not be made in any place where liquor is sold.

When wages are due:

In the case of a contract for performance of a task or piecework – when a task has not been completed, at the option of his employer, to be paid at the end of the day in proportion to work done.

To complete the task of on the following day, in which case be entitled to full pay at the end completion of the task.

In the case of piecework –to be paid at the end of each month in proportion of work done or completion of the work, whichever date is earlier.

The times when wages shall be deemed due shall be as follows: –

For casual employees – at the end of the day.
For someone employed for a period more than a day but not exceeding one month, at the end of that period.
For someone employed for a period exceeding one month, at the end of each month.
For someone employed for an indefinite period or on a journey, at the expiry of each month, or on completion of the journey.

These provisions shall not affect an order or award of the industrial court, or an agreement between employer and employee, whose terms are favourable to the employee.

Where an employee is summarily dismissed for lawful cause, he shall be paid on dismissal all moneys, allowances and benefits due to him up to the date of his dismissal.

Upon termination of a contract the employer must ensure the employee is paid the entire amount of wages earned and payable to him and also the allowances due.

No wages will be paid to the employee in respect to of a period during which he is detained or serving a sentence imposed under the law.

Deductions from Wages.

An employer may deduct from the wages of his employee: –

Any amount as a contribution to any provident fund or any other scheme approved by the Labour Commissioner, to which the employee has agreed to contribute.
A reasonable amount for any damage or loss of any property lawfully in the possession or custody of the employer caused by wilful default of the employee.
An amount not exceeding one day’s wages in respect of each working day for the whole of which the employee, without leave or other lawful cause, absents himself from work.
An amount equal to the amount of any shortage of money arising through the negligence or dishonestly of the employee whose contract provides he be entrusted with the receipt, custody and payment of money.
Any amount paid to the employee in error as wages in excess of the amount of wages due to him.
Any amount of the deduction of which is authorized by any written Law for the time being in force.
Any amount, not of benefit to the employer and which the employee has requested the employer in writing to deduct from his wages.
Any amount due to the employer as repayment of a loan, but not exceeding 50% of the wages payable to the employee.
Such other amounts as the Minister may prescribe.

No deductions shall be made from the wages, as an advance of wages in consideration of, or as a reward, for the provision of employment to the worker or for retaining him in employment.

At any one time, the total amount of deductions shall not exceed half of such wages.

Leave, Housing, Health & Welfare.

Every employee shall be entitled to Leave: –

After every 12 consecutive months of service with his employer to not less than 21 working days of leave with full pay.
Where employment is terminated after the completion of 2 or more consecutive months of service during any 12 months’ leaving-earning period, to not less than one and three-quarter days of leave with full pay, for each completed month of service in that period, to be taken consecutively.
A woman employee shall be entitled to two months maternity leave with full pay. Such a woman, who has taken 2-months maternity leave, shall forfeit her annual leave in that year.
After 2 consecutive months of service with his employer, an employee shall be entitled to sick leave of not less than seven days with days with full pay and thereafter to sick leave of seven days with half pay, in each period of 12 consecutive months of service. Such will be granted on production of a certificate of incapacity, signed by a medical practitioner.
The leave granted to an employee in (i) above shall be additional to all public holidays, weekly rest days and any sick leave.
Every employee shall be entitled to at least one rest day in every period of seven days.

Housing:

Every employer shall at all, at his own expense, provide reasonable housing accommodation for each of employees, or shall pay to the employee such sufficient as rent, in addition to his wages or salary, as will enable the employee to obtain reasonable accommodation.

Water:

Every employer shall provide a sufficient supply of wholesome water for the use of his employees at the place of employment and within a reasonable distance of any housing accommodation provided for them by him.

Food:

Every employee shall, where the provision of food has been expressly agreed to in or at the time of entering into a contract of service, ensure that every employee is properly fed and supplied with sufficient and proper cooking utensils and means of cooking, at the employer’s expense. These provisions shall not be deemed to impose upon an employer any liability in respect of any employee during the time such an employee is absent from his place of employment without the permission of the employer or without lawful expense.

Medical Attention:

Every employer shall ensure the provision for his employees of proper medicines during illnesses and of medical attendance during serious illness, and shall take all measures to ensure the illness is brought to his notice.

Death of an employee:

The employer shall inform the labour officer or DC of the areas where the employee was employed upon learning of his death. He will then pay to this officer or DC all wages due to the employee at the date of his death and shall deliver to him all property belonging to the deceased employee for transmission to the person legally entitled to.

Contracts of Service, Termination, Dismissal, etc.

Every contract of service for a period equivalent to 6 working months or more or one which provides for the performance of any specified work, to be completed in a period equivalent to 6 months or more shall be in writing. The employee may either sign on it or imprint the impression of his thumb /fingers as a sign of consent.

The employer is the one who will ensure the contract is drawn up and consented upon.

Termination

Every contract of service not being a contract to perform some specific work, and with no reference to time or to undertake a journey:

Where it is a contract to pay wages daily, be terminable by either party at the close of any day, without notice.
Where it is a contract where wages are paid periodically, at intervals of less than one month, a contract terminable by either party at the end of the period next following the giving notice in writing.
Where a contract to pay wages or salaries periodically at intervals of or not exceeding one month, a contract terminable by either party at the end of the period of 28 days next following the giving of notice in writing.

Either party may terminate the contract without notice upon payment to the other party of wages or salary, which have been earned by the other party in respect of the period of notice required to be given.

A contract of service shall not be terminated on account of redundancy unless the following conditions are complied with: –

The employees union or the areas labour officer is informed of the reasons, for and extent of the intended redundancy.

The employer shall have due regard to seniority in time and in skill, ability and reliability of each employee of the particular class of employees affected by the redundancy.

No employee shall be placed at a disadvantage for being or not being a member of the trade union.

Any leave due to any employee who is declared redundant shall be paid off in cash.

Any employee declared redundant shall be entitled to one month’s notice or one month’s pay in lieu of notice.

An employee declared redundant shall be entitled to severance pay at the rate of not less than 15 days pay for each completed year of service as severance pay.

Summary dismissal

The following matters may amount to gross misconduct and may justify the summary dismissal of an employee: –

If without leave or lawful cause, an employee absents himself from his place of work – the workstation.
If, during working hours, by becoming intoxicated or being intoxicated, an employee renders himself unwilling or incapable to perform his work.
If the employee wilfully neglects to perform any work, which it was his duty to perform, or if he carelessly and improperly performs any work which he should have performed carefully and proper.
If an employee uses abusive or insulting language, or behaves in a manner insulting to his employer or to a person placed in authority over him by his employer.
If the employee knowingly fails or refuses to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer.
If the employee is arrested for an offence punishable by imprisonment and is not within 10 days either released on bail or on bond or set at liberty.
If the employee commits or is suspected of having committed a criminal offence against or at the detriment of his employers property.

Certificate of Service.

Every employee who has worked for a period of more than 4 consecutive weeks is entitled to a certificate of service, which shall contain: –

Name and postal address of his employer
Name of employee
Date when employment commenced
Nature and usual place of employment
Date when employment ceased
Such other particulars as may be prescribed.

No employer is bound to give am employee a testimonial, reference or certificate relating to the character or performance of an employee.

A foreign contract of service is a contract of service made within Kenya and to be performed in all or part outside Kenya. Such a contract of service shall be binding; when the labour office is satisfied;

That the employee’s consent has been given.
There was no coercion, fraud or undue influence to the employee to enter the contract.
The contract is in the prescribed form.
That the terms and conditions of employment are within the provisions of the Employment Act 226, and are understood by the employee.
That the employee is medically fit for the performance of his duties under the contract.
That the employee is not to serve under any other contract of service during the period provided in the foreign contract.

No child shall be employed in an industrial undertaking. The provisions do not apply to the employment of a child in an industrial undertaking.
The provisions of the Act shall not cover a child duly employed under the provisions of the Industrial Training Act.
No child shall be employed in attendance on machinery.
No child shall be employed in any open-cast workings or sub-surface workings which are entered by means of a shaft or adit.

No woman or juvenile shall be employed between the hours of 6.30 pm and 6.30 am in an industrial undertaking. The women and young persons may only be employed in such circumstances,

In cases of emergencies, that are unforeseen and which interfere with normal work.
Where their work is connected with raw materials, which need their presence during such hours to preserve the material from certain loss.
Women, holding positions of managerial or technical nature or employed in health and welfare services and not manual work.
In cases of emergencies, the Minister may suspend, by Gazette Notice, the above section as it affects women and male young persons.

No female shall be employed on underground work in a mine, EXCEPT, in the following circumstances.

One holding a management position and does not perform manual work.
One engaged in health or welfare services.
One, who is in the course of her studies, spends a period of time training in the underground parts of the mine.
One who for some reason is forced to enter the mine on a non-manual occupation?

Employees who employ a juvenile must keep and maintain a register of their age or date of birth, date of entry into and leaving the employment and any such other particulars as may be prescribed.

An authorized officer may require any juvenile in employment to be medically examined at any time during the period of his employment.

During the hearing of a charge for an offence under this Act, the court may for its own reasons determine the Age of such person, using other available evidence and if not available, using a medical officer.

If a labour officer deems it that the employer is an undesirable persons, or that the employment is immoral, dangerous or likely to be injurious to one’s health, he may by notice in writing served to the employer, prohibit him from employing juveniles.

GENERAL PROVISIONS

Every employer shall keep a written record of all employees employed by him and maintain their personnel details and avail them for inspection by an authorized officer.

Nothing in this Act, shall prevent an employer or employee from being proceeded against according to law for an offence punishable under any law in force.

AN AUTHORIZED OFFICER

Every authorized officer shall be given a certificate of his appointment, by the labour commissioner.

Such a person will notify the employer or his representative on inspection or visit, of his presence unless such notification is seen prejudicial to the performance of the inspector’s duties. He will, if requested, produce his certificate of appointment for the attention of the employer.

Powers of Authorized Officers

Enter, inspect and examine any land or building or other structure on which he has reasonable ground for believing that an employee is living, residing or employed; so as to determine whether the provisions of the Act are being complied with.
Require an employer to produce an employee in his employment and a document relating to the employment.
Examine and take copies of a register, record, book or other document relating to employment and take possession of that register, record, book or other document which he has reason to believe may contain evidence of an offence under this Act.
Enter, inspect and examine all latrines and other sanitary arrangements or water supply.
Inspect and examine all food provided or appearing to be provided for the use of employees and take samples, in the presence of the employer, seal one for taking away and another to be left with the employer.
Order that all buildings and premises where employees are housed or employed be kept clean and in good sanitary conditions.
Institute proceedings in respect of any contravention or any offence committed by an employer under this Act.
Institute on behalf of any employee in any civil proceedings by an employee against his employer in respect of any matter, thing arising out of employment.
Take custody and return to his parent or guardian or other person, any child employed in contravention of this Act.
Subject to any direction of the labour commissioner, delegate to any labour inspector any of the powers conferred upon him under this section.

Powers of a Medical Officer

Medical Officer (See Act Cap. 226.P.5)

A medical officer means: –
A medical practitioner registered under the Medical Practitioners and Dentists Act.
A person licensed under Section 13 of the Medical Practitioners and Dentists Act.
The Medical Officer of Health of any local authority for the purposes of the Public Health Act.

A medical officer may for the purposes of this Act exercise the powers conferred upon an authorized officer by points (a) and (f) under the authorized officer.

Order an employee, who he thinks is sick and for whom the conditions prevailing at the place of employment are not conducive to the rapid recovery of his health or strength to return to his engagement or to proceed to hospital. The employer shall at the earliest opportunity and at his own expense send the employee to his place of engagement or to the hospital.
Condemn any food for employees which, in his opinion is unfit for human consumption, and all food so condemned shall be destroyed forthwith in his presence.
Condemn any building or other structure, whether permanent or temporary in which an employee is living, residing or employed – in his opinion, it is unfitted by reason of its construction, situation or condition for the purpose to which it is put.
Order at the expense of the employer such variety of food for an employee as he may deem necessary – provided that the cost of the food supplied under such order shall not exceed the normal cost of rations ordinarily supplied by employers to employees in that area.
Order the employer to supply an employee working under a written contract of service with one or more blankets or with clothing and such cost is to be deducted from the employee’s wages.
Inspect all drugs and medicines provided for the use of employees.

RULES

The minister may make rules providing for all or any of the purposes that may be convenient for the administration of this Act. This may include: –

Prescribing anything under this Act that is to be or may be prescribed.
Controlling the conditions under which employees may be housed or employed, including sanitary arrangements and water supply.
Controlling the feeding of the employees in cases where food is to be supplied by the employer under the contract of service – Quantity, variety, etc.
Regulating the care of sick and injured employees.
Prescribing books to be kept & returns to be rendered by employers.
Prescribing: –
For any period the maximum number of hours an employee will be required to work.
Intervals to be allowed to them for meals and rest.
Holidays or half – holidays allowed to them.
Any other conditions of employment.
Appoint labour supervisors where employees of one employer exceed maximum allowed.
Registration and employment of casual employees.
Establishment and administration of employment exchanges.
Prohibiting where necessary, employment of women, young persons or children in specified trades or occupations.
Requiring employers of children to furnish information and returns to any specified officer in respect of such children.
The issue by employers or any class of employers to employees in relation to any particular kind of employment, employment cards, etc.
Prescribing particulars to be included in Certificate of Service.
Prescribing the form and providing for the display in places of employment, of notices relating to wages and the terms and conditions of employment.

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Written by MJ