By Brenda Nanzala
Every person has the right to fair labour practices under the Constitution of Kenya, 2010. Article 41 Provides that an employee has the right to:
Reasonable working conditions
To form, join, participate in activities and programs of a trade union
To go on strike
To further explain these rights, the Employment Act places the basic minimum conditions of employment. Any contract of service, collective bargaining agreement, other law or court order shall be accepted where they are more favourable than those in the Employment Act.
However if an employment contract has terms and conditions are less favourable than those provided in the Act, the terms in the Act prevail over the contract or collective bargaining agreement, other law or court order
Hours of work (Section 27);
i) Employee is entitled to at least one day of rest in every period of seven days.
ii) The International Labour Organisation standard is 8 hours a day or 48 hours a week.
b. Annual Leave; ( Section 28);
i) Not less than 21 working days of leave with full pay after twelve consecutive months of service.
ii) Not less than 1 and ¾ days of leave with full pay, from second month, for every month completed, where employment is terminated before 12 months
iii) An employer may with consent of employee divide the annual leave into different parts to be taken at different intervals.
iv) Unless otherwise agreed, the employee shall have at least two uninterrupted working weeks of entitled annual leave.
v) The 2 weeks of leave are taken during the 12 consecutive months and the balance of leave to be taken no later than 18 months of leave period.
vi) Where more than 21 days of leave are provided by the employer, the leave days may be taken as agreed.
c. Maternity Leave (Section 29);
i) A female employee is entitled to THREE months maternity leave with full pay.
ii) After maternity leave, to return to the same job or other suitable job on terms and conditions similar or better than position before going on leave.( i.e. no demotion or reduction of pay)
iii) An employer may extend maternity leave to more than 3 months
iv) An employee and employer can agree that sick off, compassionate leave or annual leave to be an extension of the maternity leave.
v) Employee is to issue a 7 day notice in writing requesting for the maternity leave and should state date to leave and date to resume work.
vi) An employer can seek confirmation of pregnancy from a medical practitioner or midwife before granting the maternity leave.
vii) Female employee is entitled to maternity AND annual leave.
viii) Male employee is entitled to TWO weeks paternity leave with full pay.
d. Sick Leave ( Section 30);
i) Employee is entitled to sick leave on completion of at least two months of employment
ii) Sick leave is SEVEN DAYS on full pay and subsequent SEVEN DAYS with half pay for a period of twelve months of consecutive service.
iii) Sick leave is subject to:-
A) Employee producing Certificate of Incapacity to Work signed by a medical practitioner or person in charge of the dispensary or medical aid centre where treatment is administered.
B) Employee notifying employer of cause of absence as soon as practicable
e. Housing ( Section 31);
I) An employer shall provide reasonable housing near place of work or pay an Employee sufficient sum as rent in addition to wages or salary to enable employee obtain reasonable accommodation.
II) The above does NOT apply to
a. Employees whose salary includes an element of rent
b. Subject to a collective agreement that factors in rent in the wages or salary
III) The Minister may by Gazette notice exclude application of this requirement to some employees.
f. Water ( Section 32);
i) Employer to provide sufficient supply of wholesome water for employees to use at place of employment.
ii) Employer to provide sufficient supply of wholesome water for employees to use at housing provided by the Employer
g. Food ( Section 33);
i) Where provision of food is in the contract of service, Employer shall ensure the employee is properly fed and provided with proper cooking utensils and means of cooking at the Employer’s expense.
ii) This right is only for Employees on duty
h. Medical attention ( Section 34);
i) Employee shall notify employer as soon as possible at first occurrence of any illness or sickness.
ii) Employer shall ensure the sufficient provision of proper medicine for his employees during illness and if possible medical attendance during serious illness.
iii) Where employer is not aware of the illness he is not required to provide medical attention
iv) The employer has no obligation where the employee contracted the illness when he was absent from work without lawful excuse or cause.
v) The employer has no obligation where illness or injury is self- inflicted
vi) Employer is under no obligation where treatment is provided by the Government free of charge or under any insurance scheme which covers the employee.
i. Fair termination and dismissal (Part VI)
i) Termination notice must be in writing except in cases where the contract is to pay wages daily.
ii) Where the employee does not understand the notice, the employer should explain the notice orally to the employee in a language he understands
iii) The employee has the right to dispute the lawfulness or fairness of the termination
iv) Employee is entitled to service pay for every year worked, the terms of which are fixed by the employer
v) Summary dismissal applies where employer terminates the employee without notice or with less period of notice
vi) Employer may dismiss an employee summarily when the employee breaches the obligations set out in the contract of service
vii) No employer shall terminate the employment of an employee unfairly
viii) Unfair termination arises where:-
A. The reason of termination is invalid
B. The reason for termination is an unfair reason that is not related on the employee’s conduct, capacity or compatibility
C. The reason of termination is not based on the operational requirements of the employer
D. The employment was not terminated in accordance with fair procedure
j. Breastfeeding (Section 71 and 72)
The HEALTH ACT safeguards the right of female employees to breastfeed and ensures that employers create favourable conditions for female employees who are breastfeeding.
i) All employers are required to establish lactation stations in the workplace
ii) The lactation stations should be adequately provided with necessary equipment and facilities including hand washing equipment, refrigerators or appropriate cooling equipment, electrical outlets for breast pumps, a small table and comfortable seats
iii) Lactation stations are private, clean, sanitary and well ventilated rooms or areas in the workplace where nursing mothers can wash up, breast feed or express their milk and hygienically preserve it.
iv) The lactation station should not be located in the rest rooms
v) The employer is required to grant all nursing employees break intervals in addition to the regular times off for meals to breastfeed and express milk
Brenda Nanzala is a Law Graduate from the Kisii University School of Law. She is currently an intern at Lawquery Limited.