Employer powers limited in new law over job certification, labour relations

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The power of employers in Kenya has been limited by changes in the new law that took effect on April 4, 2022.

This was after President Uhuru Kenyatta signed into law the Employment (Amendment) Bill 2021.

The bill is a reprieve for job seekers where the employer will only be required to ask for a Certificate of Clearance (CoC) or compliance certificate after offering of employment letter.

This is opposed to an incident where the job seeker was required by law to submit the documents, which are chargeable at a fee during the job application.

Chargeable documents for job seekers are usually obtained from the Directorate of Criminal Investigation (DCI) which issues a Certificate of good conduct, the Credit Reference Bureau (CRB) which issues CoC and the Higher Education Loans Board (HELB).

The Bill was Gazetted by a Gazette Notice dated October 8, 2021, and is entirely aimed at addressing increased employee burnout and promoting employees’ work-life balance.

Specifically, the Bill seeks to amend the Employment Act, 2007 to introduce an employee’s ‘right to disconnect’. This is a workplace concept that is gaining increasing attention, globally, more so following the effect that the COVID-19 pandemic has had on labour relations.

Portugal introduced a similar rule sometime in November 2021 for all employers with ten or more employees. In Belgium, similar regulations took effect on February 1, 2022, with respect to civil servants.

The Bill defines the right to disconnect as an employee’s right to not be contacted by their employer outside of contractual working hours, except when necessary for the purposes of dealing with a workplace emergency.

The Bill places an obligation on the employer to put in place a policy framework outlining the exceptions to the right to disconnect, as well as the circumstances under which the right may be waived.

It gives employee the power not to respond to a communication if contacted outside of work hours, and that if the employee chooses to respond, he/she is to be compensated. In this case, an employer cannot penalise an employee who chooses not to respond to such an out-of-hours communication.

Essential service providers (as prescribed under section 81 of the Labour Relations Act, 2007) are excluded from the right to disconnect. Cabinet Secretary for Internal Security may, from time to time, declare any other service as an essential service.

Kenya now joins the list of countries like Ireland which issued a code of practice to employers that essentially allowed all employees to switch off from work and disengage from work-related communication save during the agreed working hours.

The Employment (Amendment) Act, 2021 is aimed at aligning Kenya’s employment laws with international best practices.

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Lawrence Baraza is a prolific writer with competencies in Digital Media, Print, and Broadcast. Baraza is also a Communication Practitioner currently spearheading Digital content on Metropol TV's Digital Desk.

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