Top 10 FAQs on Employment and Labour Relations Law in Kenya

Welcome to B M Musau & Co., Advocates LLP’s FAQ section on Employment and Labour Relations Law and Practice in Kenya. We are committed to providing you with expert legal guidance to navigate the complexities of employment law. Below are some frequently asked questions to help you understand the key aspects of employment and labour relations law in Kenya.

 

1. What is the Employment Act, 2007, and why is it important?

The Employment Act, 2007, is the primary legislation governing employment relationships in Kenya. It sets out minimum terms and conditions of employment, including contracts, wages, working hours, leave entitlements, and termination procedures. This Act is crucial because it ensures fair treatment of employees and provides a legal framework for resolving employment disputes.

 

2. What are the key rights and obligations of employees and employers under Kenyan law?

Employees have rights to fair remuneration, safe working conditions, rest, leave, and protection from unfair dismissal, among others. Employers have obligations to provide these entitlements, ensure non-discrimination, and comply with statutory requirements. Conversely, employees are obligated to perform their duties diligently, comply with lawful instructions, and maintain confidentiality.

 

3. How are employment contracts regulated in Kenya?

Employment contracts must be in writing if the employment period exceeds three months. These contracts should specify key details such as job description, salary, working hours, and terms of termination. Both parties must sign the contract, and the employee should receive a copy. Contracts are regulated to ensure they meet the minimum standards set by the Employment Act, 2007.

 

4. What is the role of the Employment and Labour Relations Court (ELRC)?

The ELRC is a specialized court that handles disputes related to employment and labour relations in Kenya. It has jurisdiction over matters such as unfair dismissal, wage disputes, workplace discrimination, and enforcement of employment rights. The court provides a legal avenue for employees and employers to resolve disputes fairly and efficiently.

 

5. May employers include arbitration clauses in employment contracts?

While employers may include arbitration clauses in employment contracts, recent court rulings have highlighted the challenges of enforcing such clauses in employment disputes. The courts have noted the potential power imbalances and high costs associated with arbitration, which may disadvantage employees. As a result, employers should consider alternative dispute resolution mechanisms such as negotiation, mediation and conciliation, which are more accessible and employee-friendly.

 

6. What are the procedures for terminating an employee?

Termination of employment must be conducted in accordance with the provisions of the Employment Act, 2007. Employers must provide valid reasons for termination, give notice or payment in lieu of notice, and follow fair procedures, including giving the employee an opportunity to be heard. Summary dismissal is allowed in cases of gross misconduct but must still follow due process.

 

7. What is the significance of the Work Injury Benefits Act (WIBA)?

The Work Injury Benefits Act (WIBA) provides compensation to employees for work-related injuries and diseases. It mandates employers to insure their employees and report accidents promptly. This Act ensures that employees receive compensation for injuries sustained in the course of their employment and provides a framework for claims and dispute resolution related to work injuries.

 

8. How do employers ensure compliance with occupational health and safety regulations?

Employers must comply with the Occupational Safety and Health Act (OSHA), which mandates them to provide a safe working environment, conduct risk assessments, and implement preventive measures. Regular training, safety audits, and adherence to safety standards are essential practices to ensure compliance and protect employees’ health and safety.  It is possible for an employer to take out an OSHA insurance policy.

 

9. How does the law address discrimination and harassment in the workplace?

Kenyan law prohibits discrimination and harassment based on race, gender, disability, religion, and other protected characteristics. Employers must implement policies and practices that promote equality and prevent discriminatory behaviours. Victims of discrimination or harassment may seek redress through the ELRC and other relevant bodies.

 

10. What steps should employers take to handle redundancy and retrenchment?

Redundancy and retrenchment must be handled in accordance with the Employment Act, 2007. Employers should provide a valid reason, follow a fair process, give notice to the affected employees and relevant authorities, and pay redundancy benefits. Transparent communication and fair selection criteria are critical in managing redundancies.

 

This article provides a general discussion of the law as it stands at the moment and is not intended to be legal advice. For specific legal guidance, please consult B M Musau & Co., Advocates LLP.

 

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