A highlight of Proposed Changes to the Employment Act, 2007

Change is on the way… The Employment Act (Amendment) Bill, 2019 proposes numerous changes to the current Employment Act, 2007 in an effort to address the many loopholes and gray areas that exist in the Act and to keep up with best labour practice.

Change is on the way… The Employment Act (Amendment) Bill, 2019 proposes numerous changes to the current Employment Act, 2007 in an effort to address the many loopholes and gray areas that exist in the Act and to keep up with best labour practice.

Putting it simply, and only highlighting the major proposed changes, the following are important to note (should the bill be enacted);

1.    A piece rate worker will not be regarded as a casual.
2.  Penalty for forced labour will increase to 5 years /5M (up from 2 years/ 500k).
3. Foreign employees must be regularized with the Kenya Citizenship and Immigration Act before engagement.
4. The scope of grounds for discrimination has been expanded.
5. Sexual harassment policy is mandatory for employer of more than ‘5’ staff (down from 20)! It will be an offence not to have a sexual harassment policy.
6. Non-compete clauses in employment contracts will be void.
7. Non-disclosure clause will be allowed for a ‘reasonable period’.
8. Introducing Rights of employees in transfer of undertakings (heavily borrowed from TUPE).
9. Employee rights will exist beyond death of an employer – exercisable against the personal representative of the employer- redundancy situation arises where business ceases to exist.
10. The penalty for wrongfully withholding or deducting employee’s salary will be Ksh 1,000,000/ (up from 100,000/).
11. Introducing details on overtime, night work & flexible working time.
12. Maternity leave limited to 1 month in case of a stillbirth.
13. Paternity leave requires a birth notification in accordance with the law.
14. Adoption leave for children below 2 yrs. will be 1 month.
15. Surrogate motherhood entitles commissioning parent to 2 months parental leave.
16. Compassionate leave of 5 days to be taken upon exhaustion of annual leave.
17. Sick leave will be at a maximum of 30 days with full pay and 15 days with half pay for ALL employees in a year. (no longer for staff who have only worked for more than 2 months).
18. Education leave of 10 days will be statutory.
19. Employers to provide an employee with written statement of reasons for dismissal.
20. Gratuity pay of not less than 15 days/year will be mandatory.
21. Employees on wages shall be entitled to service pay for every aggregate of 1 year worked.
22. Certificate of retirement to be issued to retirees.
23. Introducing Constructive dismissal in statute.
24. Deleted provision that Probationary employees cannot complain/sue for unfair termination.
25. Advocates will be able to represent parties in proceedings at the Labour Office.
26. Introducing Investigative suspension of 14 days with FULL pay pending inquiry.
27. Details on protection of employee personal data (collection, security, storage, use and communication).
28. Introduction of ADR (mediation and conciliation) of workplace dispute settlement beyond the Labour office.

The Employment (Amendment) Bill 2019 proposes many more changes. Both employers and employees should take time to look at the detailed proposed changes and how these changes will affect employment in Kenya.

This post is intended for information purposes only. It is not legal advice!