EMPLOYMENT ACT.

1. EMPLOYMENT ACT. • Employment Act. No. 11 of 2007. repealed the employment act and is enacted with the aim of declaring and defining the fundamental rights of employees and to provide basic conditions of employment of employees and to regulate employment of children and connected matters. • The Act is divided into 13 parts

2. PART I. DEALS WITH PRELIMINARY ISSUES OF INTERPRETATION AND COMMENCEMENT OF THE ACT WHICH WAS THE 26TH OF OCTOBER 2007. • The part also deals with the act’s application which is to apply to all employees employed by an employer under a contract of service • It does not apply • To the Armed Forces • National Youth Services • An employer and the employer’s dependant’s where the dependants are the only employees in a family undertaking • The acts applies to the government • The part also provides for exclusion of certain classes of employees by the minister upon consultation with the National Labour Board. • It also provides for exclusion of classes of employees where there is a special arrangement for the protection of such employees, such protection being equivalent to or better than the part of the act that is excluded from application. • The acts constitutes minimum terms and conditions of employment and renders null and void any agreement that seeks to vary, relinquish or amend the terms.

3. PART II :-DEALS WITH GENERAL PRINCIPLES THAT ARE TO APPLY • SEC. 4 prohibits forced labour which does not include • Compulsory military service except the recruitment of children in armed conflicts • Civic duty of Kenyan citizens • Work arising from a criminal conviction • Work arising from an emergency e.g war or disaster • Minor communal services which are in the communal or public interest • The section provides an offence in such instances with a fine of Kshs. 500,000 or less or imprisonment of a term of 2 years and below.

4. SEC.5 of the act outlaws discrimination in employment and makes it a duty for the minister, labour officers and the industrial court to promote equality in employment and also enjoins the employer to promote equal opportunity in employment • The act prohibits discrimination on grounds of race, colour ,sex, language, religion, political, or other opinion, nationality, ethnicity, disability, pregnancy, mental status or HIV status. • Discrimination does not include instances of affirmative action , measures, or on the basis of distinguishing or preferring an employee because of the inherent requirement of a job or employment of a citizen over a non-citizen. • Provides for equality of pay for work of equal value • Makes it an offence to discriminate and places the burden of proving that discrimination did not take place on the employer. • The provision of this particular section applies to recruitment agency and am applicant for employment:

5. SEC. 6. Outlaws sexual harassment at the work place and includes acts of inducement directly or indirectly for sexual intercourse ,sexual contract or other form of sexual activity on promises of preferential treatment in employment or a threat of detriment treatment or threat of present or future employment status of the employee. • It also includes the use of language whether written or spoken of a sexual nature or use of visual material of sexual nature or suggestive behavior. • Where an employer employs more than 20 employees, then he should come up with a policy on sexual harassment, in consultation with the employees. The policy shall define sexual harassment and make prohibition on it, and put disciplinary measures.

6. PART III: EMPLOYMENT • SEC. 7 states that a contract of service shall be in accordance with the act. • The contract shall apply whether written or oral • SEC.4. In cases where the contract of service amounts to three months or more and provides for the performance of any specified work for a period of three months has to be in writing. • The contract shall be drawn by the employer • The contract is to state the particulars of employment and state that it is consensual and signed. It is also to state the name, age, permanent address and sex of the employee and name of the employer, the job description , date of commencement, form and duration of contract, the place of work, hours of work, the remuneration and intervals of remuneration and the date that the employee begun work. • The contract shall also confirm terms on leave entitlements, incapacity to work due to sickness or injury, provisions on pensions and pension schemes . • The length of notice to be given in termination of a contract and the period of employment • It shall also include terms of collective agreements and place of work . • The contract shall also have statements of disciplinary rules which shall specify the disciplinary rules applicable and specify persons to whom the employee is answerable to and to whom he can appeal. • Where there is a change of statements then the employer shall give the employee a written statement containing particulars of change . • Where the contract refers to a document or collective agreement then these should be reasonably accessible to the employee or is made accessible to him. • An employer is required to display a statement in a prescribed form of the employee’s rights under the act and it should be conspicuously displayed. • Where there in no provision of statements by the employer of his employment relationship then the employee may file a complaint with the labour officer. Where there is a failure to provide such statements then the employer shall be liable on conviction to a fine of not more than Kshs. 100,000 or to a term of not more than 2 years.

7. PART IV : PROTECTION OF WAGES. • Payments of the entire amount of wages earned shall be paid in Kenya Shillings either in • cash, • payment into bank, • by cheque, postal order or money order in favour of the employee, • or in the absence of an employee to an authorized person • Payments are to be made on working days and during working hours, at or near the place of employment and is not to be made in any place where intoxicating liquor is sold or readily available save where the employee works in such a place. • Where payments or allowance is to be made in kind then such payments or allowance must be consensual and for the personal use and benefit of the employee and does not consist of or include any intoxicating spirit or noxious drug. • Where there is an attachment order made by court then it has to be against the employer and shall not exceed 6 month’s wages of the employee. And the employee shall be entitled to recover any balance through the ordinary process of law. This shall not apply to cases where the employer is insolvent. • Where there is an advance to an employee of a sum on excess of the amount of one month’s wages or in cases of written contracts, two months wages, then such advances is not recoverable through court proceedings. • Where a person fails to make payment to his employee or fails to pay wages or makes the payments in irregular manner then such a person commits an offence and an conviction is liable to a fine not exceeding Kshs. 100,000 or imprisonment of 2 years or less. • The employee is free to dispose of his earnings as he wishes.

8. Wages shall be due: • in the case of task being carried out upon the completion of the task or a portion at the end of the day where it has not been completed. • In the case of the work to be paid for at the end of the month then depending on such proportion done by the end of the month. • Wages or salaries shall be deemed to be due: • In the case of casual employee-at the end of the day. • Period of more than a day but less than a month, then at the end of such period. • In case of period exceeding one month at the end of each month. • In indefinite periods or an a journey then at the expiration of each month or of such period whichever date is earlier and an completion of the journey.

9. Where an employee is summarily dismissed then he shall be entitled to payments, allowances and benefits due to him up to the date of his dismissal. • Where the contract terminates by efluxian of time then the employer is to ensure that all payments due to him are paid. • The employer is to file with the labor officer a report on the circumstances leading to and reason of dismissal. • Where an employee is detained or imprisoned then he is not entitled to wages for such period. • Deductibles on wages include:-contributions to a provident fund or superannuation scheme or other scheme approved by the commissioner of labour. • A reasonable amount for damage done or loss of any property • A day wages where the employee is absent without reasonable excuse for each day absent. • Where there is a shortage occasioned by the employee then that amount lost where he is custodian of money. • Any amount paid to employee in errors as wages. • Any amount that is authorized in law.

10. An amount requested by employee to be deducted. • An amount due to the employer from a loan issued not exceeding 50% of wages • Such other amounts as the minister may prescribe. • All deductions shouldn’t exceed 2/3 of wages • Such deductions must be paid into the rightful apportionment failure creates offence punishable by affine of less or equal to Kshs.100,000 or two years imprisonment or both. The employer may also be ordered to refund such monies • The wages or salary has to be in a written statement which shall indicate the gross amount, any statutory deductions and the net amount and mode of payment in cases of part payment. This shall not apply to casual employee. • A statement of statutory deductions must be in writing and indicate the amount of deduction, it’s intervals and apportionment • Where an employer is not resident in Kenya , shall execute a bond requiring them to deposit employees wages equivalent to a month. • Employer to give notice of the death of an employee to the labour officer or district commissioner. • In case of death of employee such wages as are due at the time of death shall be payable to the legal representatives of the employee within 30 days of submitting proof. • Where there’s an unlawful deduction then the employer commits a crime punishable by 2years imprisonment or Kshs.100,000 fine and to refund the amount. An employee may file a complaint of such unlawful deductions.

11. PART V; RIGHTS AND DUTIES IN EMPLOYMENT(TERMS OF EMPLOYMENT). • Hours of work to be regulated by employer- an employee is entitled to 1 rest day for every seven consecutive days. • Annual leave- 21 working days within 12 months with full pay which may be taken in intervals. But the employee shall be entitled to 2 weeks uninterrupted leave. • An excess of the minimum 21 days may be negotiated between employer and employee. • A female employee shall be entitled to 3 months maternity leave with full pay on expiry of the 3 months, the female employee shall be entitled to hold the post that she held at the time prior to maternity leave or a suitable job and on the same or more favourable conditions as the previous. • The female employee is to give notice of her intention to go on maternity leave at least seven days notice, which shall be in writing. • If required the female employee may produce a medical report for her condition. • No female employee shall forfeit her annual leave on account of having taken her maternity leave.

12. A male employee shall be entitled to 2 weeks paternity leave with full pay. • Sick leave of not less than seven days with full pay and thereafter to sick leave of 7 days with half pay in each period of 12 consecutive months of service. • In case of absence because of sickness the employee shall notify the employer within reasonable time of his absence. • Employer to provide housing near business or provide a house allowance sufficient for rent in addition to the wages. But shall not apply where the same is a subject of collective agreement. The minister may however exempt a category if employees from this application. • Employer to provide wholesome drinking water at place of employment. • Where agreed upon then the employer is to provide food. • Employer to provide for medical care during illness, the employee is to give notice . this shall not apply where the illness occurs during a period of absence or injury was self inflicted of medical treatment provided for free by the government .

13. PART VI: TERMINATION AND DISMISSAL • TERMINATION NOTICE : • If contract is for daily wages then it is terminable by either party at the close of any day without notice. • Periodical payments of less than a month then notice in writing is needed at the end of the period. • Where wages are paid periodically at intervals of more than a month notice in writing is needed at the end of 28 days period. • Where agreed specifically for a notice in writing by the parties then such agreement shall apply • Where an employee does not understand the notice when in writing then it should be explained orally in a language he understands. • An employee has a right to dispute the lawfulness or fairness of the termination. • An employer can also terminate without notice for any cause recognized by law. • An employee who has had his services terminated shall be entitled to service pay for every year worked. • Payments shall be made in lieu of notice where a notice is required and was not made. • There shall be a conversion of casual employment to term contract where such casual employment exceeds one month • There may be waiver of notice by employer where the employee gives notice and employee shall be entitled the equivalent of the period notice. • Contract expiring on a journey may be extended ; to allow employee to complete the journey

14. CONDITIONS FOR TERMINATION ON ACCOUNT OF REDUNDANCY • Where employee is a member of a union then notice be made to the union, the labour officer in charge a month before the intended redundancy. • If not a member of a union then the employee be notified personally in writing and to the labour officer. • Before declaring redundancy then due regard as to seniority in time and to skill, ability and reliability to each employee of the particular class at employees affected should be made. • In case of a collective agreement being in place setting out terminal benefits payable upon redundancy then reference should be made to the agreement. • Notice be made or one month’s wages in lieu of notice. • Where leave is due and has not been taken then the leave should be paid off in cash. • Severance pay at the rate of not less than 15 days pay for each completed years of service. • These conditions not apply in case of insolvency by employer • Minister may require that insurance of certain classes of employees against redundancy. • There has to be notification and a hearing before termination on grounds of misconduct, where the employee shall be entitled to a defence. • A probationary contract shall not exceed 6 months and a 7 days notice is required in cases of probationary contracts. • An employer is required to prove the reason for termination, failure makes it an unfair termination.

15. Summary dismissal :- • where no notice is given or notice is less than required, this can only be done by employer where the employee has fundamentally breached the terms of his contract of employment (gross misconduct) • Absenteeism without leave • Intoxication during working hours rendering him incapable of work • Neglect to perform his duties ,or carelessly performing them • Is abusive or uses insulting language to superior or his employer • Knowingly fails or refuses to obey a lawful order • Arrested for an offence and not released within 14 days either on bond or bail or unconditionally. • Commits an offence against the employer.

16. Unfair Termination: • Constitutes • An invalid termination • Use of an unfair reason either related to the employees conduct, capacity or operational requirements • Unfair procedure • An employee may only complain of unfair dismissal if he’s been employed for 13 months and above . • Unfair termination shall apply where the employer did not act in accord with justice and equity.

17. Complaint of summary dismissal and unfair termination • shall be made to the labour officer within three months of such dismissal, who shall then hear both parties and give opinion on the way forward. • The employee may also complain to the industrial court, or any rights enjoyed under a collective agreement. • The burden of proving an unfair , wrongful dismissal shall rest on the employee while the burden of justifying the grounds for termination shall rest on the employer. • No advocate is to represent an employee before a labour officer.

18. Remedies for wrongful dismissal and unfair termination • Wages that the employee would have earned had he been given notice. • The proportion of wages due for work done and any loss that arose between the date of dismissal and date of expiry of notice which the employee would have been entitled to • The equivalent of a number of months wages or salary not exceeding 12 months based on the gross monthly wage or salary of the employee at the time of dismissal. • The labour officer complained to may also recommend to the employer to: • Reinstate the employee to the same position or • Re-engage the employee in work comparable to that which has undertaking • All this taking into account the; wishes of the employee ; circumstances in which the termination took place , the practicability of reinstatement or re-engagement, the common law principle that there is no specific performance in a contract for service, the employees’ length of service with the employer, the reasonable exception of the employee, opportunities available to employee, value of any severance pay, right over unpaid wages, expenses incurred because of termination, conduct of employee, • An employer is to issue a certificate of service to the employee upon termination of service which shall indicate • Name and address of employer • Name of employee • Date of employment • Nature of usual place of employment • Date when the employment ceased • Such other particulars as may be prescribed • No employer is bound to give testimonial of reference to the employee

19. PART VII: PROTECTION OF CHILDREN: • Where child provides assistance to another person and payments is due to that person • Where child’s labour is used for gain by any person or institution whether or not the child benefits directly or indirectly • Where there is a contract for service where the party providing the service is a child • The act under section 53 prohibits all worst forms of child labour, which forms shall be regulated by the National Labour Board who shall declare any work, activity or contract of service harmful to the health, safety or morals of a child • A complaint may be made to a labour officer or police of the rant of inspector or above of any reported child employed in an activity constituting worst form of child labour. Such officer shall investigate the claim within 7 days and submit his finding to the person who complained of it. • The labour officer has power to cancel and prohibit contracts of employment of children except for contracts of apprenticeship or indentured leanership (which is a form of training under the industrial training act). Where in the opinion of the labour officer the employer is an undesirable person, or that the nature or that the nature of the employment constitutes worst forms of child labour or for any other cause which may be prescribed.

20. Such employer may however appeal the decision within 30 days to the industrial court • Section 56. Prohibits the employment of children between the age of 13 and 16 yrs of age. • Any person who employs or parent or guardian who allows a child at between 13 or 16 years to be employed under a written contract commits a crime punishable by fine of 100,000 or imprisonment of 6 months. • A child between 13-16 yrs may only be employed under an apprentice ship pr indentured learn ship in accordance with the industrial training act. Thus no child may attend to any machinery unless under the provision of the act. • No child is to be employed in an industrial undertaking between 6.30 Pm and 6.30 AM. But in cases of emergencies the minister may by notice in the Kenya Gazette waive this provision. • An employer shall keep a register of children under his employ and indicate the age and date of births , date of entry and leaving employment, such other particulars as may be prescribed. • An authorized officer may require a child in employment to be medically examined at any time during the period of the child’s employment. • Sec. 64. creates a penalty for unlawful employment of a chilled • Se. 65 In the case of death or injury of a child then the employer shall be liable to a fine of not more than 500,000 and/imprisonment of 12 months.

21. PART VIII:- INSOLVENCY OF EMPLOYER • Where the minister is satisfied that an employer has become insolvent and cannot pay his employee and the employment has been terminated then the minister may pay the employee out of the National Social Security Fund • An employer is insolvent if he is adjudged bankrupt or has made an arrangement with his creditors or has died and his estate is to be administered under the Law of Succession Act. • If the employer is a company it is insolvent if a winding up or an administration order has been made or a resolution for voluntarily winding up has been passed or a receiver manager has been duly appointed. • Debts include:- • arrears of wages in respect of one or more months but not more than 6. • Any payments in lieu of notice, or in lieu of leave not taken • Or an award for compensation for unfair dismissal • Any reasonable sum by way of reimbursement • The minister may however make limitations to such debts payable • An officer is to be appointed to ascertain the amount of debt payable such officer includes : • A trustee in bankruptcy • A liquidator • An administrator • A receiver manager • A trustee under a composition of arrangement between employer and his creditors • A trustee under a trust deed • Where a person has applied for payment and has not received anything he can make a complaint to the industrial court on the ground that the minister has not made such payments or that the payments is less than should have been paid • The minister has powers to obtain information from the employer on the debt payable

22. PART IX: - EMPLOYMENT RECORDS • Records to be kept by an employer • A policy statement • A statement of contract of employment • A statement of change in terms of contract of employment • A statement of statutory deductions from wages • An employee’s weekly rest days • An employees annual leave entitlement, days taken and days due • Of sick leave • Of maternity leave • Where the employer provides housing, particulars of the accommodation provided, and where the wage notes are deconsolidated particulars of the house allowance paid to the employee • Of food rations where applicable • Register of children under employment • Of a record of warning letters or other evidence of misconduct of an employee • Any other records required by law of prescribed by the minister • An authorized person may inspect such records • False entries makes the employer:- liable to imprisonment or fine.

23. PART X:- EMPLOYMENT MANAGEMENT- NOTIFICATION OF VACANCIES. • This part applies to an employer who employs 25 employees or more • This part requires such employer to notify the Director of every vacancy occurring in the establishment, business or work place in a prescribed from giving details of:- • Employers name and address • Details of vacant post • Minimum qualification required • Place of work • Type of work • Other information that the director may require • Notification is required on filling or abolition of the post • Notification is also required of termination of employment • Such employer shall also register his employees and keep such a register • The part creates an offence for failure to fulfill its provision punishable by fine of 100,000

24. PART XI;- FOREIGN CONTRACTS OF SERVICE • A foreign contract of service to be in the prescribed form and executed by parties and attested by a labour officer. • Where the employer is not a resident in Kenya then the employer may be required to execute a bond of security • The part creates an offence to induce a person to proceed abroad under an informal contract

25. PART XII: DISPUTES SETTLMENT PROCEDURE: • Jurisdiction: • Breach of contract • Dispute on rights or liabilities of either party • Misconduct , neglect or ill treatment of either party • An aggrieved person may complain to the labour officer or lodge a complaint or suit in the industrial court • No court other than the industrial court shall determine any complaint or suit referred to in the act. • Where an offense is committed and no special penalty is provided then the guilty party shall be liable to a fine of not more than 50,000or imprisonment of a term of not more than 3 months or both • Sec. 89: saving of contracts of service made abroad • Limitations of actions are 3 years under the act for any breach complained of under the act.

26. PART XIII:- MISCELLENOUS PROVISIONS: • Provides for the making of rules by the minister • The repeal of Cap 266 • Transitional provisions- any contracts made prior to this shall apply to the extent that the terms and conditions thereof are not inconsistent with the provisions of the act.