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|Labour laws in Kenya: Maternity & Other Types of Work Leaves by Kenyans247(m): Sat Aug 2019 05:24pm|
Did you know that the employer-employee relationship is governed by the labour laws of the country?
It does not matter whether one works in an office or is a domestic worker, the labour laws are set to protect both the employer and employee and include things such as the minimum wage, working hours/conditions, leave days and employee rights.
It is important to note that leave days are an employee’s right and they are to be taken on a voluntary basis.
This article shares all you need to know about labour laws in Kenya.
Labour laws in Kenya
These are rules and regulations put in place to govern the working relationship and protect the rights of employers and workers by clearly stipulating the obligations and responsibilities of each party to the employment.
Importance of labour laws in Kenya
Reduces industrial unrest and promotes harmony within the organization.
Protects workers from exploitation by employers.
Enhances industrial relationships.
Guarantees job security for employees.
Assists employees to get fair wages equivalent to their contribution
Categories of labour laws
Labour laws are divided into collective labour laws, which involve the relationship between the union, the employer, and the employee, and the individual labour laws that deal with the relationship between the employer and employee, without the involvement of trade unions.
The labour laws in Kenya of 2007 are broken down into five Acts as enacted by the Parliament. These are:
The Employment Act
Labour Institutions Act
Labour Relations Act
Occupational Safety and Health Act (OSHA)
Work Injury Benefits Act (WIBA)
The employment relations in Kenya are regulated by:
Statutory rights stipulated in statutes and regulations.
Rights dictated by collective agreements as well as extension orders of collective agreements.
Individual labour contracts
These legal sources are interpreted by the industrial court and in some instances by the normal courts.
1. Kenya labour laws termination of employment
Employment termination is when the employee-employer relationship comes to an end.
According to the law, the employer can lawfully terminate employment based on the following grounds:
Worker's poor performance
Physical incapacity of the worker confirmed after a medical examination
Employer’s operational requirements such as retrenchment
Employee's participation in an illegal strike
The termination notice should be done in writing or orally in case the employee cannot read.
The employer can terminate the employment contract at any moment, but the employee must be given a notice which ranges from one day for those who are paid daily to one month for monthly payment agreements.
The same applies when the employee wants to terminate employment for various reasons.
If either party does not give a termination notice, he/she must make payment of salary in lieu of notice.
Unfair termination occurs when reasons for termination are not provided.
2. Kenya labour laws on the resignation
Resignation is a notice that you are quitting your job.
Labour laws in Kenya on resignation are Under the Employment Act, sections 14(5) and 16. The conditions for terminating the contract by the employee apply here. These are:
Employees who receive monthly payments must inform the employer one month before they stop working.
If an employee does not give the employer the notice, he/she should pay the employer the equivalent of wages for that period.
If the resignation of the employee violates a contractual obligation to work, they may be liable to damages.
3. Kenya labour laws on leave days
Under section 28 of the Employment Act, the annual leave is 21 working days during which the employee is entitled to full pay, without working and it is exclusive of public holidays.
When the employee has worked with the employer for 12 consecutive months, they are entitled to annual leave.
An employee can accumulate leave but they must be taken within 18 months. Not doing so will force the employee to forfeit the accumulated leave.
4. Kenya labour laws on working hours
Under the regulation of ages order, subsidiary to the Regulations of Wages and Conditions of Employment Act, the total working hours are 45 per week.
A person employed at night may not work for more than 60 hours a week.
Employees below sixteen years of age cannot work for more than 36 hours a week.
If a worker works more than the normal hours weekly, the extra hours are treated as overtime.
Overtime shall be paid at the rates of one and one half hourly rate on weekdays and at the rate of twice the basic hourly rate on Sundays and public holidays.
Employers can schedule overtime for their employees.
An employee is entitled to a weekly rest day after working for six consecutive days.
5. Kenya labour laws on retrenchment
The Kenyan Employment Act 2007 defines retrenchment as the loss of a job or occupation through no fault of the employee.
Retrenchments happen mostly where the services of the employee are no longer needed.
Selecting employees to be retrenched should be based on the seniority at the time, skills, abilities, and dependability of each employee in the selected group of employees to be laid off.
Labour laws in Kenya on registration of an employee into a trade union fall under the Labour Relations Act of 2007.
One of the labour laws on registration into a trade union is that individuals above 16 years can become members of trade unions.
If an employee is a member of a trade union, the employer should inform the trade union official representing the area by issuing a notice of fewer than thirty days before retrenchment.
If the worker is not in a trade union, the employer should personally inform them about the termination in writing.
Severance pay is the only payment for redundancy. In Kenya, this pay is equivalent to 15 days of basic wages for each completed year of employment.
An employee is not entitled to service pay if he or she is a member of a registered pension fund, gratuity or service pay scheme established under a collective agreement, or any other scheme provided by the employer whose terms are favourable.
Types of work leaves
In addition to having some time off work just to relax on your off days, there are other circumstances which might force employees to take some time off.
The labour law clearly highlights only three types of leaves that an employee in Kenya is entitled to which are;
1. The maternity /Paternity leave
Further, Section 29 of the ACT says that a female employee is entitled to 3 months of maternity leave with full pay after which she also has a right to return to her job.
It is worth knowing that maternity leave in Kenya is calculated as 90 calendar days and not 90 working days. This simply means that a parent has exactly 3 months to stay at home with their newborn.
The fact that you have taken your maternity leave does not mean that you are no longer eligible for your annual leave. This is according to the current Kenya employment act.
To be safe, most expectant employees combine the two just to prolong the days they spend with their newborns.
You are also eligible for full pay and other benefits you may be entitled to at your workplace.
The salary and benefits should be delivered on a regular basis just as the case is when the employee is at work.
This applies to both paternity leave and maternity leave for civil servants in Kenya.
Every expectant employee who desires to start her maternity leave is at liberty to choose the day to begin.
Every freedom comes with responsibility and so does the freedom to acquire maternity leave.
In order to enjoy your maternity leave, it becomes your responsibility to inform your employer seven days before you begin your leave. The notice must be in written form.
Maternity leave policy in Kenya does not have any limits as to how many times a woman can take maternity leave. This means a woman is eligible for paid maternity leave in Kenya every time she is pregnant.
The employer has no right to terminate an employee’s contract on grounds that she is pregnant, on maternity leave or immediately after reporting back to work after maternity leave.
According to section 5 (3) (a), it specifies that no employer shall discriminate directly or indirectly against an employee or prospective employee or harass an employee or prospective employee on grounds of pregnancy.
In cases of doubts, the female employee is also required by the law to produce a certificate as to her medical condition from a qualified medical practitioner or midwife.
2. Annual Leave
According to section 28 of the Kenyan Employment Act, every employee is entitled to 21 annual leave days after every 12 consecutive months of service with full pay.
An employer can divide these 21 leave days into intervals with the consent of their employees.
Also, it is important to note that the labour laws of Kenya require that an employee takes their leave days on a voluntary basis.
3. Sick Leave
Section 30 of the Employment Act highlights that an employee who has worked for 2 consecutive months is entitled to sick leave of not less than seven days with full pay.
Also, they are entitled to sick leave of seven days with half pay, in each period of twelve consecutive months of service.
Won’t employees abuse this right then?
The Act clearly highlights that for this sick leave to be valid, the employee has to produce a certificate of incapacity to work signed by a duly qualified medical practitioner or a person acting on the practitioner’s behalf in charge of a dispensary or medical aid centre.
So a person won’t wake up one morning and decide that they are sick and won’t show up for work.
For an employee to be entitled to sick leave with full pay he/she has to notify you as the employer as soon as they feel sick and give reasons why they need to take the leave.
Other leaves not indicated in the Employment Act but being used by many organizations in Kenya are;
1. Compassionate leave
Compassionate leave in Kenya allows an employee to attend to his/her misfortunes which are usually not planned for and may occur at any point in time including death, sickness or accidents of relatives and friends.
So it’s generally up to your company’s policy to decide on which direction to approach the compassionate leave from.
2. Compulsory Leave
Compulsory leave is an administrative leave imposed on an employee by the employer normally to pave way for investigations into possible employment offences which may ultimately lead to the commencement of disciplinary proceedings.
3. Leave of absence
Upon request, other employers in Kenya allow their employees to an unpaid leave of absence from work for a period of time depending on the organization.
Note: These types of leaves are subject to different organizational decisions.
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