Contributed By Munyao Muthama and Kashindi
The Kenyan Employment Act was amended through the Employment (Amendment) Act 2021 to provide for pre-adoptive leave for prospective adoptive parents. An employee is now entitled to one month pre-adoptive leave with full pay from the date of the placement of the child in the custody of the employee.
There have been no permanent legislative actions and initiatives taken to cope with COVID-19 in the employment sector. Some of the key initiatives are as follows.
Kenya does not have a distinction between the blue collar and white-collar workers. The terms of engagement for an employee are what distinguish their status. The Kenyan Employment Act provides for casual and non-casual employees and also piece rate employees where an employer engages an employee to perform a specific task at an agreed rate within a specific time.
Casual employees are engaged for a period not longer than 24 hours at a time and are paid at the end of each day. Casual employment converts automatically to term contracts if a casual employee works continuously for a period of three months. Other forms of engagement are those where employees are engaged either on open ended contracts or fixed term contracts.
Definite contracts are those that are for a defined or fixed period and should not be terminated before the term has expired unless for good cause.
Indefinite contracts are those that are for an open period and may only be terminated by the employer upon:
In Kenya both oral and written contracts are recognised. When a contract is written, there are basic requirements prescribed, such as the inclusion of:
These mandatory particulars should be agreed upon not later than two months after commencement of employment. Employment records ought to be kept for a minimum period of five years after the termination of the employment.
Working hours depend on the industry or sector, some sectors for example, factories and hotels have long hours and night shifts. These are prescribed by the Regulations of Wages (General) Order as well as under other sector-specific Wage Orders.
The general normal number of hours per week is a maximum of 52 hours spread over a six-day working week. The normal working week of a person engaged on night work consists of not more than 60 hours of work spread over six days of the week. Overtime plus time worked during normal hours per week should, in any period of two consecutive weeks, not exceed 144 hours for employees engaged in night work and 116 hours for all other adult employees. Employees are entitled to at least one rest day in every period of seven days. Such rest days can be deferred up to a maximum of 14 rest days which can then be taken as the usual leave on full pay.
It is possible to adopt flexible work arrangements between the employer and the employee. The work schedule can be structured to fit in this flex time arrangements. With the COVID-19 Pandemic flexible and agile work arrangements have been embraced by a majority of workplaces.
There are overtime requirements under the General Order which provide for payment as follows;
For the purpose of calculating overtime in relation to employees who are not employed by the hour, the basic hourly rate must be deemed as no less than one 225th of the employee’s basic minimum monthly wage.
Overtime plus time worked during normal hours per week must not exceed the following number of hours in any period of two consecutive weeks:
The Labour Institutions Act No 12 of 2007 prescribes minimum wages for certain categories of workers. There are Wage Orders that are published regularly by the Cabinet Secretary in charge of labour matters.
There are sectoral wage orders that govern each sector for instance the private security guards, factories; agricultural industry and hotels amongst others but there is the General Wages Order which generally covers a wide categorisation of workers including, among others:
The applicable rates vary with the categories of workers and the place of work within the country. Rates for urban areas are higher than for rural areas.
Bonuses and the 13th month salary are not entrenched in Kenyan law; these are entirely contractual and will be contained in contracts or collective bargaining agreements. If these benefits are not in the contract and an employer has consistently paid a 13th month cheque/bonus and such practice or custom is reasonable, certain and notorious; the courts have said that such practices become implied terms of the employment contract which can be legally enforced provided that sufficient and clear evidence is placed before the court.
The government intervenes in compensation and salary increases in various ways including the following:
The Central Planning and Monitoring Unit (CPMU) is involved in economic disputes in court assessing economic factors, particularly in disputes relating to adjusting salaries in a Collective Bargaining Agreement.
The Employment Act entitles an employee to not less than 21 days of annual leave, with full pay, after 12 consecutive months of service, annual leave being the preferred term rather than vacation leave.
Under the Act, employees are also entitled to sick leave of not less than seven days with full pay and thereafter to sick leave of seven days at half pay, after two consecutive months of service. Regulation 12 of the Regulation of Wages (General) Order provides for a maximum of 30 days' sick leave with full pay and thereafter a maximum of 15 days sick leave with half pay in each period of 12 months’ consecutive service.
The court has favoured the application of the General Order provisions which is considered more favourable to employees.
Female employees are entitled to three months of maternity leave with full pay, in addition to the annual leave.
A male employee is also entitled to two weeks paternity leave with full pay, in addition to the annual leave.
Following recent amendments to the law in 2021, prospective adoptive parents (employees) are now entitled to pre-adoptive leave of one month with full pay.
The Regulation of Wages and Conditions of Employment (General Order) provide that an employee is entitled to compassionate leave up to their earned annual leave entitlement. In addition, an employee may be granted compassionate leave of five days without pay in any one year.
Rules on confidentiality on the part of employees and liabilities arising therefrom are governed by common law principles and contractual provisions since there are no express statutory provisions. The same position applies to non-disparagement requirements.
The applicable law on the enforceability of non-competition clauses is set out in statute, common law and judicial precedent.
The main statutory provisions are set out in the Contracts in Restraint of Trade Act, Chapter 24 of the Laws of Kenya (the Act) which was enacted for the purpose of making lawful certain contracts in restraint of trade. The Act provides that any agreement or contract which contains a provision or covenant whereby a party thereto is restrained from exercising any lawful profession, trade, business or occupation shall not be void only on the ground that the provision or covenant is contained therein.
The Act provides that the court has the power to declare such provision or covenant void. In doing so the High Court must take into account all the following factors:
Common Law Position and Judicial Precedent
The Courts have been hesitant to enforce contracts in restraint of trade. Some of the main reasons for the reluctance in enforcing such clauses is the weak position of the employee in terms of bargaining and the compulsion that may exist upon an employee to take employment so as to earn a living. The leading authority on this issue is the case of Giella v Cassman Brown  EA 358 which was decided by the East Africa Court of Appeal in 1973 and continues to be upheld by the courts in more recent cases. The court ruled that contracts in restraint of trade are generally invalid as being contrary to public policy, but a partial restraint in a contract may be enforced if it is reasonable in the interest of both parties.
The test of enforceability of non-compete clauses is thus that of reasonableness. A non-compete clause can be declared valid and enforceable if it is reasonable in the interests of the parties to the covenant, and reasonable having regard to the interests of the public. To be reasonable in the interests of the parties the restraint must afford adequate protection to the party in whose favour it is imposed. To be reasonable in the interests of the public it must be in no way injurious to the public interest.
In determining the enforceability of non-compete clauses, the court looks at the competing interest of the employer and the ex-employee. A covenant which is purely against potential competition on the part of the employee will not be held valid since an ex-employee has the legitimate right to earn a living using the skills and experience acquired during employment. An employer is, however, entitled to have certain of his interests protected from interference or attack by the employee even if this may also operate to prevent competition. An employee’s knowledge of their employer’s trade secrets, processes of manufacture, etc, and their knowledge of the customers who deal with the employer, all belong to the employer. As such, an employer can control the employee’s use of it by a covenant which restrains the freedom of activity and work of the employee.
Although not provided for in statute, there is a developing trend by employers of offering to pay the ex-employees during the non-compete periods or part thereof, ostensibly to deal with the issue of ex-employees being unreasonably restrained without earning a living. This trend which appears to be borrowed from other jurisdiction is yet to be tested by litigation as to whether or not it meets the reasonableness test.
Non-solicitation of customers by employers either for their own benefit or for the benefit of a competitor is also governed by the Contract in Restraint of Trade Act, CAP 24 Laws of Kenya, common law and judicial precedent.
The test for enforceability of a non-solicitation clause is also that of reasonableness. The employer bears the burden to prove that the restriction is reasonable and intended to protect their legitimate business interest. The court will easily decline to enforce such a clause if, having regard to the nature of the profession, trade or business concerned the period and area of implication, it is unreasonable and inhibits the interest of the ex-employee.
Kenya now has the Data Protection Act 2019, which is the principal legislation governing personal data protection in Kenya. It is modelled after the European Union’s General Data Protection Regulations (GDPR), mirroring its key provisions.
The Data Protection Act requires data processors and controllers to comply with the principles of data protection which are similar to those set out in the GDPR. These principles are: lawfulness, fairness and transparency, purpose limitation, data minimisation, accuracy, storage limitation and transfer limitation.
Processing of personal data is not permitted unless certain conditions set out under the Act are met. This includes obtaining the consent of the person whose data is being processed. Other than consent, the Act recognises other lawful bases of processing personal data including, performance of contractual obligations, compliance with legal obligations, protection of vital interests of the data subject, pursuant to public interest and pursuant to the legitimate interest of the data subject
Processing of sensitive personal data is prohibited except under prescribed permitted grounds. Personal data relating to the health of a person should only be processed by or under the responsibility of a health care provider, or by a person subject to the obligation of professional secrecy under any law.
Confidentiality Rights and Obligations
The Data Protection Act was enacted to operationalise and implement Article 31 of Constitution 2010, which guarantees the right to privacy which includes the right not to have information relating to private affairs unnecessarily revealed. This right goes hand in hand with the inherent dignity which is also guaranteed by Article 28 of the Constitution. This position has been upheld in Kenya wherein the Court reiterated the provisions of the UDHR and the ICCPR and stated that the right to privacy is tied to the dignity of a person and must be accorded for one to be able to enjoy rights and freedom under the law.
There are other statutes which have provisions on data privacy including the HIV/AIDS Prevention and Control Act, No 14 of 2006 which requires employers to keep confidential personal information of employees regarding their medical status. Information on the medical status of employees must be treated with confidence and should not be conveyed except in accordance with the law.
The Health Act, 2017 also imposes confidentiality obligations in relation to health status information or treatment and requires such information to be treated as private information which should not be disclosed unless allowed by law.
The employers who bear certain information about their employees are prohibited by Section 6 of the Access of Information Act No 31 of 2016 from disclosing such information whose disclosure is likely to involve unwarranted invasion of the privacy of a person.
International Law Provisions and Principles on Data Protection
International law provisions and principles have been invoked in the enforcement of data protection. For instance, the courts have invoked the provisions of Article 2(5) and (6) of the Constitution – (which provide that the principles of international law as well as any treaty and convention ratified by Kenya form part of Kenyan law) to import protection from the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights in such enforcement.
Article 12 of the Universal Declaration of Human Rights provides that no person shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.
Article 17 of the International Convention on Civil and Political Rights similarly prohibits arbitrary or unlawful interference with a person’s privacy, family or correspondence nor unlawful attacks on the person’s honour or reputation. This right is a guaranteed upon everyone and the law should protect against such interference or attack.
The European Union’s General Data Protection Regulation (GDPR)
The European Union’s General Data Protection Regulation (GDPR), which took effect on 25 May 2018, has certain implications outside the EU including Kenya, in view of the provisions of Article 3 which has provisions on territorial coverage. The said Article provides that the Regulation applies to the processing of personal data for data subjects (individuals) who are in the EU by a controller (any company) not established in the Union. As such, if an employer has employees who are data subjects (EU citizens), it should comply with GDPR.
The Kenya Citizens and Immigrations Act, No 12 of 2011 provides for limitations on the use of foreign workers. The key limitation is that a foreign employee is not allowed to work in Kenya without a valid work permit or pass issued by the Department of Immigration.
Foreign workers first point of registration is during the issuance of work permits. There are several classes of work permits issued depending on the nature of the work foreigners are engaged in. The most relevant class for foreign workers is Class D which is issued to foreign workers who have been offered employment by a specific employer, the government of Kenya, an organ of the United Nations or any other agency approved by the Department of Immigration. To acquire this permit, foreign workers must show that they possess skills or qualifications that are not available in Kenya.
The government carried out a permit verification exercise on foreign workers, which resulted in various changes to policies and procedures aimed at streamlining and ensuring efficient vetting and approval of permits. These changes led to the increased scrutiny of applications by the Immigration Department. Key changes and heightened focus now include the general requirement that all applications include an understudy setting out details on training, transitioning and phasing out. The changes also include the creation and maintenance of an up-to-date digital database for foreign workers.
National Identity Cards
In early 2019, the government rolled out a mass registration under the National Integrated Identity Management System (NIIMS) – dubbed Huduma Namba – for all Kenyans residents including foreigners. The registration is intended to result in the issuance of digital identity cards to Kenyan residents, used for access of government services – “huduma” is a Kiswahili word which means “service”. The Huduma Namba/Digital Identity Cards are intended to consolidate crucial documents such as identity card, driving licence, passport, and alien cards. There is currently no legal framework to govern the NIIMs registration.
The proposed Bill has not gone through all the necessary legislative stages and is yet to be passed. It proposes making it mandatory to use the digital identity card to access public facilities and services including paying taxes, opening bank accounts, electricity connection, issuance of passports, registering or renewing a driving licence, transacting in the financial markets, among others. The Bill proposes harsh penalties should such things be carried out without the digital identity card.
Joining and Participating in Union Activities
Article 41 of the Constitution of Kenya, 2010 enshrines the right for employees to form, join or participate in activities of a trade union as one of the tenets of fair labour practice.
The requirements for registration and recognition of Unions are prescribed by the Labour Institutions Act, 2007.
Section 54 of the Labour Relations Act provides that- for a trade union to be “recognised” by an employer for purposes of collective bargaining, it must represent the simple majority (more than 50 per cent) of unionisable employees. A unionisable employee is defined by Section 2 of the Act as an employee eligible for membership to a particular trade union. As such, unionisable employees are determined by considering the provisions of a trade union’s constitution.
In view of the provisions of Section 54 of the Labour Relations Act, a trade union and an employer are required to enter into recognition agreements once the simple majority threshold of unionisable employees is met. Such recognition agreement must be in writing, in line with the provisions of Section 54(3) of the Act and must set out the terms upon which the employer recognises a trade union. A recognition agreement should provide for trade union members in a workplace to elect from among themselves trade union representatives in accordance with the constitution of a trade union. A recognition agreement should also grant a trade union reasonable access to the employer’s premises for officials or authorised representatives of the trade union to pursue lawful activities of the trade union.
Once a recognition agreement is in place, a trade union and an employer can then enter into collective bargaining agreement.
Role of Unions
The principal roles of trade unions include; regulation of relations between their members and employers, promotion, advocating and advancing the rights and interests of their members – mainly relating to better working conditions and remuneration. They also advocate for collective relations between employers and workers through the promotion and protection of freedom of association and negotiation of collective bargaining agreements. The collective bargaining agreements usually contain provisions on remuneration, grievance, complaint and disciplinary procedures, complaint procedures, rules governing hiring, promotion of workers, benefits, workplace safety and policies among others.
Trade unions are the only employee representative bodies that have statutory backing in Kenya. Employees may also collectively bargain or relate in other representative bodies (although this is not very common) such as workers council or other agency or representative body but how they do it would depend on the contractual provisions or internal policies of the employers.
The main roles of representative bodies including trade unions are the regulation of relations between their members and employers and the promotion, advocating and advancing the rights and interests of their members – mainly relating to better working conditions and remuneration.
A trade union’s registration commences by applying for issuance of a registration certificate from the Registrar of Trade Union (the "Registrar") as required by Section 12 of the Labour Relations Act. The Registrar is required to issue a certificate within thirty days of receiving the application if it is in order. A trade union is then required to apply for registration to the Registrar within six months of issuance of the certificate. A Trade Union must have a constitution as a pre requisite for Registration.
A collective bargaining agreement (CBA) is defined by Section 2 of the Labour Relations Court Act as a written agreement concerning any terms and conditions of employment made between a trade union and an employer, group of employers or organisation of employers.
Once a recognition agreement is entered into between an employer (or group of employers or employers' organisation) and a trade union; a CBA should be entered into setting out the terms and conditions of service for all unionisable employees covered by the recognition agreement.
The terms of a CBA should be incorporated into the contract of employment of every employee who is covered by the CBA.
CBAs have to be registered with the Employment and Labour Relations Court for them to have effect in law. They should be submitted within 14 days’ of their conclusion. Submission of the agreement to the court for registration is done by the employer or employer’s organisation. The CBA could also be submitted by the trade union in case the employer fails or is not willing to do so. The court may decline to register a CBA that conflicts with the Labour Relations Act or any other law or if it does not comply with any of the guidelines concerning wages, salaries and other conditions of employment issued by the Cabinet Secretary in charge of labour.
Termination of employment is governed by the Employment Act, 2007. Article 41 of the Constitution guarantees fair labour practices and is key.
Termination of employment has to be for just cause, valid and fair reasons. A reason for termination is fair or valid if it is related to the employee’s conduct, capacity, and compatibility or based on the operational requirements of the employer. An employee has the right to be heard before termination of employment on account of misconduct, poor performance and incapacity.
Different procedures are applicable depending on the grounds and mode of termination.
For termination on account of poor performance, misconduct or incapacity; Section 41 of the Employment Act as interpreted by the courts, sets out a mandatory procedure to be followed by employers. The main aspects are;
Judicial precedent has developed additional obligations on the employer for termination for poor performance and incapacity, other than those set out in statute.
Termination for Poor Performance
For termination on account of poor performance, an employer should have a structured system of reviewing an employee’s performance and allowing the employee to improve over a reasonable period of time, before a decision for termination is made. A period of two to three months has been held by the courts to be a reasonable period to place a poor performing employee on a Performance Improvement Plan (PIP). The PIP should be participatory in that it should have the employee’s input. Regular appraisals, reviews and evaluations should be undertaken during the PIP period.
All evaluation sessions must be documented and must specify the employee's actual performance in line with the PIP goals. The employer is also required to demonstrate measures put in place to support a poor performing employee to improve and that despite such support, the poor performing employee has not made improved to a satisfactory standard and hence the reason for termination.
If an employee does not improve after the end of the PIP programme, the employer should simply not sent the affected employee packing. The employee should be taken through a show-cause process under which an employee should be given yet another opportunity to make representations as to why their employment should not be terminated for poor performance.
Termination for Illness or Incapacity
For termination for illness or incapacity, two key considerations that have emerged from judicial precedent are the following.
According reasonable accommodation to employees and exercising due care and sensitivity entails several actions on the part of an employer including:
Failure to follow this procedure, even where there is overwhelming evidence of an employee’s inability to work, amounts to unfair termination for want of procedural fairness.
Termination on account of redundancy is based on specific procedure different from termination for misconduct, incapacity, poor performance and other modes of termination. Redundancy is defined under Section 2 of the Employment Act, 2007 as the loss of employment, occupation, job or career by involuntary means through no fault of an employee. It involves the termination of employment at the initiative of the employer, where the services of an employee are superfluous.Section 40 of the Employment Act sets out the mandatory procedure for termination on account of redundancy which includes the issuance of notices to employees, unions (for unionised members), and the labour officer.
Section 40 also provides for minimum redundancy payments which include severance, accrued leave and notice pay. The section also provides for the selection criteria applicable in collective redundancies. In selecting the employees to be declared redundant, the employer must have due regard to theseniority in time, skill, ability and reliability of each employee of the particular class of employees affected by the redundancy. All of these parameters must be considered. The selection criteria should be fair, objective and transparent. The criteria must be applied systematically and uniformly across the board and, it must be structured and comparatively based.
The applicable procedure for termination on account of redundancy and other applicable payments are as follows:
Courts have firmly held that the procedure prescribed under Section 40 of the Employment Act is mandatory and must be followed for any redundancy to be fair.
In addition to the express statutory provisions on redundancy under Section 40 of the Employment Act, judicial precedent provides that the obligation to consult employees likely to be affected by redundancies or their unions is implicit from the provisions of Section 40. Further legal basis upheld by the courts for the obligation for employers to carry out consultations is Article 13 of Recommendation No 166 of the ILO Convention No 158- Termination of Employment Convention, 1982 which requires consultation between the employers and the employees or their representatives before termination of employment on account of redundancy.
Consultations have been stated by the courts as intended to discuss measures to be taken to avert or to minimise the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment. The consultations are therefore meant to cause the parties to discuss and negotiate a way out of the intended redundancy, if possible, or the best way of implementing it if it is unavoidable. If redundancy is inevitable, consultations are meant to discuss measures to be taken to ensure that as little hardship as possible is caused to the affected employees.
Termination by notice is by itself not sufficient – there must be valid reasons related to the employee’s conduct, capacity, and compatibility or based on the operational requirements of the employer.
The notice periods are determinable by the intervals upon which wages or salary are paid. For instance, where the contract is to pay wages daily, the contract is terminable at the close of any day without notice to either party; where the contract is to pay wages periodically at intervals of less than one month, the contract is terminable at the end of the period next following the giving of notice in writing; where the contract is to pay wages or salary periodically at intervals of or exceeding one month, the contract is terminable by either party at the end of the period of 28 days next following the giving of notice in writing.
The foregoing will not apply if a longer notice period is provided in a contract of employment or in a CBA.
Service pay is payable to an employee whose contract of service has been terminated by notice but no payment is due if the employee was a member of a registered pension or provident fund scheme, a gratuity or service pay scheme established under a collective agreement, any other scheme established by the employer whose terms are more favourable than those of a service pay scheme established under the Employment Act, or the National Social Security Fund.
For Redundancies there are two notices which are required to be issued are:
The above two notices will run concurrently. After the expiry of the notice of intended redundancy the employee is issued with a notice for termination of employment.
The entire applicable procedure for termination on account of redundancy and other applicable payments are as follows:
Payment in lieu of notice – this is payable at the end of the 30 days’ notice of intended redundancy. The employee can alternatively serve notice instead of being paid in lieu thereof.
Section 44 of the Employment Act, 2007 provides that summary dismissal shall take place when an employer terminates the employment of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term.
For a summary dismissal to be fair and lawful, there must be compliance with two things: there must be substantive justification for the dismissal (termination based on valid/fair grounds) and there must also be adherence to requirements of procedural fairness. Failure to comply with both aspects renders a termination/dismissal unlawful and unfair. An employee whose employment has been unlawfully and unfairly terminated is entitled to among other reliefs; maximum compensation of 12 months' pay or reinstatement among others.
Regarding substantive justification/valid reasons for summary dismissal, Section 44 (3) states that an employer may dismiss an employee summarily when the employee has by his conduct indicated that he has fundamentally breached his obligations under the contract of service.
Section 44(4) provides that the following amount to gross misconduct to justify the summary dismissal of an employee for lawful cause:
The above list is not exhaustive and an employer is not precluded from summarily dismissing on other grounds that constitute gross misconduct or a fundamental breach of contractual obligations. What amounts to a valid ground for dismissal is based on the test of reasonableness.
The courts have noted that it is not for the court to audit the truth of reasons for termination of employment. All the court needs to ensure is that the reason put forward for dismissal or termination are reasons which the employer reasonably believed to exist and are reasons for which a reasonable employer would terminate the services of an employee. This, however, does not mean that a court cannot scrutinise and analyse the validity or grounds for summary dismissal. There are numerous cases in which the courts have found that the reasons for termination were not valid nor reasonable.
On procedural fairness, an employer should comply with the mandatory provisions of Section 41 of the Employment whose main aspects are:
Internal disciplinary procedures and policies (which do not conflict with the law) should also be adhered to. This may, for instance, include appeal procedures.
The foregoing provisions in the Employment Act on the right to be heard are modelled along the International Labour Organization Termination of Employment Convention No 158 of 1982. In particular, like Section 46 of the Act, Article 7 of the Convention requires, in mandatory terms, that no decision to terminate the services of a worker for reasons relating to the worker’s conduct or performance can be taken without providing him with an opportunity to defend himself on the allegations.
Mutual separation/termination agreements are permissible in Kenya. There are no statutory provisions governing such agreements and so what applies are the common law principles of what constitutes a valid and enforceable contract. There have also been judicial pronouncements on mutual termination and the courts have upheld the fact that parties to an employment relationship are free to agree to terminate it at any time.
Mutual termination agreements may take the form of a usual contract or a Voluntary Early Retirement scheme, where employees voluntarily agree to retire based on terms offered by an employer and accepted by an employee.
Mutual separation agreements usually have provisions whereby the employee agrees to waive, release or discharge the employer from any liability arising from the separation in consideration of the employee receiving a separation package.
A mutual separation agreement will not be enforced if it is shown that it was vitiated by undue influence, intimidation, coercion, inducement, duress or misrepresentation or any other factors that would vitiate any other contract.
There is no specific protection in law against dismissal for particular categories of employees.
In practice, most employers are hesitate in termination of employment for pregnant employees or those on maternity leave, ostensibly to avoid being accused of discrimination based on pregnancy which is prohibited on both statute and the Constitution. In addition, Section 29(2) of the Employment Act provides that a female employee has the right to return to the job she held immediately prior to the maternity leave or to a reasonably suitable job on terms and conditions not less favourable than those which would have applied had she not been on maternity leave.
In termination of employees on account of illness or incapacity, judicial pronouncements have placed obligations upon employers to accord reasonable accommodation and exercise due care and sensitivity to employees before termination. Judicial pronouncements have also placed obligations on how to terminate on account of poor performance by affording employees opportunities to improve over time.
For termination of employment to qualify as lawful, there must be both substantive and procedural fairness. Substantive fairness entails ensuring that there are valid and fair reasons for termination – which reason is related to an employee’s conduct, capacity, and compatibility or based on the operational requirements of the employer.
Section 46 of the Employment Act, 2007 provides for wrongful and unfair grounds for termination or dismissal or the imposition of a disciplinary penalty:
Procedural fairness requires employers to accord employee’s opportunity to be heard before a decision on termination is made. It also obligates employers to observe and follow other applicable procedural provisions in the law or internal policies and procedures.
If a determination is made that a dismissal or other termination is unjustified or unfair, an employee may be granted the following reliefs:
For orders of reinstatement and re-engagement, several factors need to be considered, including the practicability of reinstatement or re-engagement, whether the employee wishes to return to work and the circumstances in which termination took place.
Section 5 of the Employment Act, 2007 prohibits direct or indirect discrimination and harassment against any employee or prospective employee on grounds of race, colour, gender, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status. Article 27 of the Constitution lists all these grounds and also adds the following as prohibited grounds for discrimination; age, health status, ethnic or social origin, conscience, belief, culture, dress and language.
Section 5 of the Employment states the prohibition of discrimination with respect to recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising from employment.
Section 5 provides that it is not discrimination to:
Damages for discrimination are not fixed. They are awarded based on the discretion of the court, depending on the circumstances of each case.
The Employment and Labour Relations Court is the main specialised court established by the Constitution and the Employment and Labour Relations Court Act to determine disputes relating to employment and labour relations. Appeals from the Employment and Labour Relations Court lie to the Court of Appeal and ultimately to the Supreme Court – but only in limited circumstances.
Some magistrates of the subordinate courts have recently been granted jurisdiction to hear certain employment disputes.
The Directorate of Occupational Health and Safety has recently been recognised by the court as having the power to adjudicate work injury claims at the first instance with appeals falling to the Employment and Labour Relations Court. This a departure from the past where such claims would be filed in court at the first instance.
Most employment-related claims are instituted by the individual claimants. Class, group or representative actions are also possible and this usually happens through trade unions. Group and representative actions to agitate employment and labour relations matters of a constitutional nature can also be instituted – this has been done mostly by human and civil rights activists – in view of the provisions of Articles 22 and 258 of Constitution, which allow such actions.
Representation in court is usually in persons (individual claimant), by an advocate or trade unions.
The court embraces Alternative dispute resolution (ADR) mechanisms. The general rule is that arbitration agreements are enforceable in view of the provisions of Article 159 of the Constitution which requires courts to encourage ADR. Section 15(4) of the Employment and Labour Relations Court Act also has certain provisions on ADR. Rule 15 of the Employment and Labour Relations Court Procedure Rules 2016 also requires the court to encourage parties to consider ADR.
The Employment and Labour Relations Court has in the recent past (from early 2019) rolled out the Court annexed mediation programme whereby cases are screened by the Mediation Registrar and referred to court-annexed mediation. A number of cases have been settled through this mechanism.
Being a common law jurisdiction, costs usually follow the event, meaning the successful party should be awarded costs, although it is usually at the discretion of the court. The court is usually reluctant in awarding costs against employees given the nature of the matter. It is considered that an employer is at a superior level and ordering an employee to pay employer costs would not be the ideal situation. The employee may not have secured an alternative employment and awarding cost them will be onerous.