Employment Relationship refers to the legal and social connection between an employer and an employee. This relationship is established through an employment contract, either written, oral, or implied, and encompasses the rights, duties, and obligations of both parties.

The employment relationship in Kenya is governed by the Constitution of Kenya, 2010, and the Employment Act, 2007. These legal frameworks establish the rights and responsibilities of employers and employees, ensuring fair and just treatment in the workplace.

 Constitution of Kenya, 2010

The Constitution of Kenya, 2010, provides the overarching legal framework that safeguards the fundamental rights and freedoms of all citizens, including those in employment. Key provisions relevant to employment relationship include:

• The Bill of Rights protects the rights of all individuals, including the right to fair labor practices, equality, and freedom from discrimination (Articles 27, 51).
• Right to Fair Labor Practices ensures fair remuneration, reasonable working conditions, and the right to form, join, or participate in the activities of a trade union (Article 41).
• Equality and Non-Discrimination prohibits discrimination on grounds such as race, gender, religion, ethnicity, or any other status (Article 27).

 Employment Act, 2007

The Employment Act, 2007, is the primary statute that outlines the terms and conditions of employment relationship in Kenya. The Employment Act applies to all employees engaged under a contract of service. However, it does not apply to the Armed Forces, Police, Prison Service, National Youth Service, and family businesses where only family members are employed.

General Principles of Employment

The following are the general principles of employment provided under the Employment Act:

Prohibition Against Forced Labour

Forced or compulsory labour is defined as any work or service demanded from an individual under the threat of penalty, without their voluntary consent. The Employment Act, 2007, strictly prohibits the use of forced or compulsory labour in any form. However, the Act specifies certain exemptions that do not fall under this prohibition, including Military Service, civic obligations, Court-ordered labour, emergency services, and communal services.

Those found guilty of recruiting, trafficking, or utilising forced labour are subject to severe penalties, including a fine of up to 500,000 shillings, imprisonment for a term not exceeding two years, or both.

Discrimination in Employment

Discrimination refers to the unfair or prejudicial treatment of individuals or groups based on specific characteristics. In the context of employment, discrimination can manifest in various forms, including but not limited to race, color, sex, language, religion, political opinion, nationality, ethnic origin, disability, pregnancy, marital status, or HIV status.

The Employment Act mandates the promotion of equal opportunities in the workplace to eliminate discrimination. Employers are required to:

• Promote equal opportunity and eliminate discrimination in employment policies and practices.
• Avoid direct or indirect discrimination and harassment based on race, color, sex, language, religion, political opinion, nationality, ethnic origin, disability, pregnancy, marital status, or HIV status.

However, certain actions do not constitute discrimination under the Act:

• Affirmative Action. These are measures aimed at promoting equality or eliminating discrimination.
• Job Requirements. These are distinctions based on inherent job requirements.
• National Employment Policy. This pertains to employment preferences given to citizens as per national policy.
• State Security. These are restrictions in employment categories for state security reasons.

Additionally, employers must ensure equal pay for work of equal value, ensuring no wage disparity based on discriminatory factors.

In cases of alleged discrimination, the employer bears the burden of proving that discrimination did not occur and that any actions were not based on prohibited grounds.

Sexual Harassment

Sexual harassment is any unwelcome conduct of a sexual nature that affects an employee’s employment conditions or creates a hostile work environment. This includes:

• Requests for sexual favors with implied or explicit promises of preferential treatment or threats of detrimental treatment.
• Use of sexually explicit language, visual material, or physical behavior that is offensive or unwelcome.

The Employment Act requires that employers with twenty (20) or more employees must issue a policy statement on sexual harassment. This policy should include:

• A definition of sexual harassment.
• A statement affirming employees’ right to a harassment-free workplace.
• Measures the employer will take to prevent harassment and the disciplinary actions that will be taken against perpetrators.
• Procedures for reporting harassment complaints and ensuring confidentiality.

Communication of Policy

Employers must ensure that all employees are aware of the sexual harassment policy and the procedures for addressing complaints.

Overview of Employment Relationship

Contract of Service/Employment Contract

Under the Employment Act, 2007, no individual can be employed under a contract of service (also referred to as the employment contract) unless it adheres to the provisions of the Act’s. This requirement ensures that all employment contracts meet legal standards and protect the rights of both employers and employees.

Oral and Written Contracts

The Act applies to both oral and written contracts, ensuring that all employment agreements, regardless of their form, comply with legal standards.

General Provisions for Contracts of Service

Requirement for Written Contracts

Any contract of service lasting three (3) months or more, or involving work that cannot reasonably be completed within three (3) months, must be in writing. Employers are responsible for drafting written contracts that include employment particulars and obtaining the employee’s consent.

Employees can signify their consent by signing the contract or imprinting a thumb or finger impression in the presence of a witness other than the employer.

If an employee is illiterate or does not understand the language of the contract, the employer must explain the contract’s terms in a language the employee understands.

Recruitment Requirements

Employers are prohibited from requiring clearance or compliance certificates from prospective employees unless they intend to enter into a contract of service with them, except for applicants to state offices. However, employers may request mandatory clearance certificates from relevant entities as per Chapter Six of the Constitution. If an employee does not meet these requirements, the employer may withdraw the offer of employment.

Contents of Written Employment Contracts

The law requires that written employment contracts must state employment particulars, which should be provided within two months of employment commencement. These particulars include:

• Employee’s name, age, address, and sex.
• Employer’s name.
• Job description.
• Employment commencement date.
• Contract duration.
• Place of work.
• Working hours.
• Remuneration details.
• Pay intervals.
• Date of continuous employment.
• Annual leave entitlements.
• Sick pay provisions.
• Pension schemes.
• Notice periods for contract termination.
• Collective agreements affecting employment terms.
• Conditions for working outside Kenya for more than a month.

Changes to Employment Terms

Employers must consult with employees and revise the contract in writing if any employment terms change. They must keep the written particulars for five years after employment termination.

Legal Proceedings

If an employer fails to produce a written contract or employment particulars in legal proceedings, the burden of proving or disproving the terms of employment lies with the employer.

Disciplinary Rules

Employers must provide a statement on disciplinary rules and grievance procedures, accessible to employees. However, employers with fewer than fifty employees are exempt from this requirement.

Statement of Changes

Employers must inform employees in writing of any changes to employment particulars as soon as possible, but no later than one month after the change occurs. Changes can be referenced in accessible documents or collective agreements.

Informing Employees of Their Rights

Employers are required to display a statement of employee rights under the Act in a conspicuous and accessible place for all employees.

Employment Management

Employment Management refers to the comprehensive process of overseeing and coordinating all aspects of an employee’s lifecycle within an organization. This includes recruitment, onboarding, training, performance management, employee relations, compensation, benefits, and termination.

Notification of Vacancies

The law stipulates that an employer with twenty-five (25) or more employees must notify the Director of Employment of any vacancies in their organization. This notification must include:

• The employer’s name and address.
• Details about the vacant position.
• Minimum qualifications required for the role.
• The location of the job.
• The nature of the work (casual, permanent, or contract).
• Any other information the Director may require.

A vacancy is considered to occur when an employer creates a new post, decides to hire, or an existing post becomes vacant due to termination.

Notification of Filling or Abolition of Posts

Employers must inform the employment service office in writing within two weeks if a notified vacancy is filled or abolished.

Notification of Termination of Employment

Employers are required to notify the nearest employment service office in writing within two weeks of an employee’s termination or lay-off.

Register of Employees

Employers must maintain a register with details such as the full name, age, sex, occupation, date of employment, nationality, and educational level of each employee. An annual return of employees, containing this information, must be submitted to the Director by January 31^st of the following year.

Exemptions

The Cabinet Secretary Ministry of Labour and Social Protection may exempt certain categories of employers, industries, or sectors from these requirements or adjust the application limits.

Offences and Penalties

Employers who violate these provisions may face a fine of up to one hundred thousand shillings, imprisonment for up to six months, or both.

Current Practices for Notifications and Filing Annual Returns

Considering the above, it is important to clarify that currently there is no office of the Director of Employment or an Employment Service Office in Kenya. The mandate to implement Employment Management is currently the responsibility of the National Employment Authority (NEA). In light of this, employers have only one obligation to submit notifications and file annual returns with the NEA.

Recommendations for Compliance

Organizations should implement the following measures to ensure compliance with employment laws and avoid penalties and other consequences of breaches:

Written Contracts 

• Ensure all contracts of service lasting three months or more are in writing and include all required employment particulars.
• Develop standardized contract templates covering all necessary details: employee’s name, age, address, sex, employer’s name, job description, employment commencement date, contract duration, place of work, working hours, remuneration details, pay intervals, date of continuous employment, annual leave entitlements, sick pay provisions, pension schemes, notice periods for contract termination, collective agreements affecting employment terms, and conditions for working outside Kenya.
• Provide explanations of contract terms in a language the employee understands, especially for illiterate employees.

Prohibition of Forced Labour

• Create a policy explicitly prohibiting forced or compulsory labour, in line with the Employment Act, 2007.
• Regularly audit employment practices to identify and address any potential issues.

Equal Opportunity and Non-Discrimination Policy

• Develop a comprehensive equal opportunity policy promoting non-discrimination based on race, color, sex, language, religion, political opinion, nationality, ethnic origin, disability, pregnancy, marital status, or HIV status.
• Raise awareness among employees about their rights and the company’s obligations under the law.

Sexual Harassment Policy

• Develop and disseminate a policy statement on sexual harassment, including definitions, employees’ rights, preventive measures, and disciplinary actions.
• Create a confidential procedure for reporting sexual harassment, ensuring prompt and fair investigations.
• Conduct regular training sessions to educate employees about sexual harassment and the company’s policies.
• Ensure the sexual harassment policy is easily accessible to all employees and communicated effectively.

Regular Training and Education

• Conduct regular training sessions for HR and management staff on the legal requirements and internal procedures for compliance.
• Conduct training sessions to educate employees and management on forced labour, sexual harassment, non-discrimination, and all other aspects of employment law.
• Implement awareness programs to educate employees about their rights and the organization’s obligations under employment laws.

Accurate Job Postings and Recruitment Processes

• Establish a detailed recruitment policy that includes procedures for notifying vacancies, specifying required qualifications, and describing job types.
• Ensure all job postings are accurate and comply with legal requirements for information disclosure.
• Implement a standardized process for notifying the Director of vacancies, filling or abolishing posts, and employee terminations.
• Create templates for these notifications to ensure all required information is consistently provided.

Robust Record-Keeping and Filing Notifications and Annual Returns

• Develop a robust system for maintaining employee records, including personal details, employment dates, and educational qualifications.
• Regularly update the employee register and ensure notifications of filling or abolition of posts, termination of employment, and annual returns are strictly filed within the prescribed timelines. 

Internal Audits and Compliance Checks

• Perform regular internal audits to check compliance with employment laws and internal policies.
• Address any discrepancies or non-compliance issues promptly.

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The information provided in this article is for general informational purposes only and does not constitute legal advice. For guidance or inquiries regarding Employment Relationship in Kenya, contact us via email at info@dmklaws.co.ke and dmklaws@gmail.com or call +254 111 888 681.