EMPLOYMENT AND LABOUR

LAW

Table of Contents
1. THE EMPLOYMENT RELATIONSHIP
2. GENERAL PRINCIPLES OF EMPLOYMENT
a. Sexual Harassment
b. Forced Labour
c. Discrimination
3. RIGHTS AND DUTIES IN EMPLOYMENT
a. Duties of Employers
b. Duties of Employees
4. TERMINATION OF EMPLOYMENT
a. Constructive dismissal
b. Summary dismissal
c. Redundancy
Suluhu workshop- 23//7/2022 d. Termination of a probationary
Elsie Gathoni, Gilbert Ogolla contract
Introduction
Employment law is all about the provisions relating to labour. The main
legislation governing this topic is the Employment Act of 2007.
The provisions on employment are important because they govern an
anthropological duty of man as well as previous injustices present during
the Industrial Revolution (as most of our laws are derived from UK Acts).
 General principles of

The Employment relationship employment

Forced Labour
Section 2 and Section 4 of the
What is a contract for service and a contract of service? Employment
Act, 2007.
How can we distinguish between the two?
Discrimination
Everrett Aviation Ltd v KRA [2013] eKLR and Stanley Mungai Muchai v National Oil Section 5 of the Employment Act,
Corporation [2012] eKLR. 2007.
Sexual Harassment
What is the criteria established by the two cases? Control test, mutuality of Section 6 of the Employment Act,
obligation test, economic reality test, integration test and multiple test. However, 2007.
the court further distinguishes on a case-to-case basis.

Why do we need to create a distinction?

Forced Labour
Section 2: Forced/compulsory labour is any work/service extracted
from any person at the threat of any penalty, including a threat of a
loss of rights or privileges not offered voluntarily by the person doing
the work or performing the service.
Section 4:
4(1): Denouncement against forced labour.
4(2): Instances where forced labour is not said to apply. When
engaging in compulsory military service, normal civic obligations,
work/service derived from a conviction under the law, work done
during an emergency such as a natural disaster and communal
services by members of a community.
4(3): Any person who contravenes this section will be subject to a
fine not exceeding 500,000kshs or imprisonment for a term not
exceeding 2 years..
 Discrimination
1. Section 5:
2. Affirms duty of Minister, labour officers and Industrial court in
protecting against discrimination.
3. Duty of employer to promote equality and eliminate
discrimination.
4. Grounds upon which an employer may not discriminate. One
section is similar to Article 27(4) of the COK, other section
on employment matters.
5. When it is not discrimination: when enacting affirmative
action, distinguishing on the basis of inherent requirements
of the job (Jane Achieng v UON), employment as per the
national employment policy or limiting access in the interest
of State security.
6. There should be equal remuneration for equal value.
VMK v CUEA [2013] eKLR- distinguishes this principle
with equal pay for equal work. Equal pay for equal work
being when a woman is paid less and valued less for
work that demands the same of her as it does for a
man- of which the man is paid more.
7. The court thus, deviated from the initial statement in
the Act to bring across its meaning in a different form.
8. Offence committed upon contravention of this section
9. (7) Employer bears burden of proving action of
discrimination.
10. 4. Provides definitions of an employer, employee and
employment policy or practice for the purpose of this
Section.
Sexual Harrassment
Section 6:
1. Provides conditions for proving how sexual harassment may
occur This can be through direct or indirect requests,
language of such a nature, visual material or physical
behaviour- whether express or implied.
2. Need to issue a sexual harassment policy when 20 or more
employees are maintained.
3. Details on what the policy should entail such as the
definition of sexual harassment and other factors such as
the complaints process for sexual harassment cases.
4. The requirement of the employer in showing the sexual
harassment policy to employees.
 Rights and Duties of an
Employer and Employee
Employer:
• Duty to provide work
• Pay agreed wages
• Provide safe system of work- meaning machines work, floors are clean, more
industrial setting 'safety'.
• Indemnify employees and reimburse expenses/liabilities in the orders issued to them
especially when provisions for this have not been made to them by the employer.
• Employee is merely obligated to produce a certification of service that a person has
worked for them. A recommendation/ letter of reference is not needed. But if this is
done, a true reference must be made.
• To maintain trust and confidence- failure of this deems the employee ability to resign
and claim constructive dismissal (this has not been codified in legislation but
succeeded as a principle in court). Constructive dismissal is when you claim for
damages on resignation due to:
○ Actions that may be construed as mistreatment.
○ Unfair favouritism of one race/gender on promotion or through actions made.
When an employee's contract with an
employer ends:How, why and What Next?!
 Rights and Duties of an
Employer and Employee
Employee
• Be ready and willing to work under direction of employer for agreed wages.
• Exercise reasonable care and skill in tasks- this can be one of the basis for
deduction of wages by employers if this is contravened.
• Obey lawful orders.
• Act in good faith. Now, there are confidentiality clauses to maintain and enforce
this duty. Examples of bad faith would be:
○ Speaking ill of the employer/harming their reputation.
○ Competing with employer and making secret profits.
○ Not disclosing information that may render work hazardous.
• Taking care of the employer's property and indemnifying them against any loss.
• Maintain confidentiality during and after the employment.
 Employment contracts give
both parties rights, duties
Good, when
and obligations. Terminating
do I start?
employment would mean
terminating the contract.

Types of Employment Contracts:

Casual Contract
Probationary Contract
Fixed Term Contract
Open Ended Contract
Foreign Contract
Piecework Contract
Contract of Apprenticeship
 Termination can be voluntary
(employee's choice) or involuntary
(employer's choice)
Termination occurs either by
1. operation of the law/ automatic termination
2. by notice from either the employee or the
employer.

Regardless, it must be done lawfully:

Part VI Employment Act, 2007
 TERMS TO NOTE

Notice Period: This is the time in between

the issuance of the notice and the last
This is the official document that
working day.
indicates the intention to terminate an
employment contract.
In Kenyan Law, it is determined by the
Section duration of payment for work done by the
35(2)&(3)
EA
employee. i.e: If an employee is paid
weekly, the minimum notice period is one
A notice given to an employee must
be WRITTEN and if the employee week.
cannot understand it, the employer An employment contract can only extend
must ensure that the notice is orally but not shorten this period.
explained in a language that the
employee understands.
Notice Periods: Section
If the employee is employed on a daily wage contract, the notice is given at the close of
any day. (no prior notice required)

If the employee is employed on a weekly pay or two-week basis the notice period shall
be one week or two weeks respectively, or payment of one week’s salary in lieu of
notice. Notice must be given in writing.

If the employee is paid monthly, the notice period shall be 28 days and in writing or
payment of one month’s salary in lieu of notice.

If a contract contains a clause that indicates the notice period be more than a month
but the time is not spefic, the employer and employee shall agree on a definite period.
(section 35 (2)of th EA.
Payment in lieu of Notice (PILON) An em pl o y ee w h o
When an employer fails to give an e iv e d n o tic e
has rec
employee his/her termination notice, p a id fo r t h e
is still
o n e d u ri n g
they are legally required to pay the salary work d
c e p e r io d o n
and benefits that the employer would the noti
w or kin g d ay
have accrued during the unserved notice the last
period
This is payment in lieu of notice.
 An Ideal Termination would look like
this:

The recepient accepts

it and the employee
works for the
remaining days during Employee
the notice period
leaves having
been paid for
Employee or employer gives
notice of termintation
days worked
during notice
period
However, it's not always that
simple....which brings us to the Con tru ct ive
s a l
different types of termination Dis m is

m ar y
Sum
sm is sa l
These types of termination are classified Di
based on the procedure they follow and
why they were initiated in the first place.

edundancy
R

ina t ion o f a
Term
Prob at io nary
Contract
 e
At the Court
ctiv
s tru
Con al
is s
Dis m For the court to conclude
.
whether there was constructive
dismissal, the employee must
It happens when the employer makes the prove the following:
working conditions of the employee so The employer made a
hostile and intolerable that the employee fundamental breach of
feels compelled to resign. contract
The resignation was as a
An employer may have no reasonable result of the breach
grounds for dimissal hence initiating There was no delay in
constuctive dismissal. resignation after the breach
(reasonable time)
The employee gives a letter of resignation
 So, Constructive Dismissal would look
like this:

Leaves work
and has a right
to sue the
employer for
compensation
Employer makes
it intolerable for If Employee proves
the employee The employee writes constructive
a resignation letter dismissal he/she is
within reasonable entitled to
time stating reasons compensation or
for resignation reinstatement
 Exceptions to Summary
Section Summary Dismissal
40 EA Dismissal Absentism from work without
leave
This is when an employer Intoxication during working
terminates the employment of an hours rendering the
employee without giving notice or employee incompetent
less notice than what the employee Use of abusive language to
is entitled to the employer or someone of
Example: An employer giving a 2- higher authority
days notice of termination to an Refuses to perform
employee entitled to a month's to n fundamentalduties in the
Se c
f the contract
notice period (4) o
40 Refuses to obey a lawful
This type of dismissal is unfair and EA
command which was within
unlawful unless it can be justified under
the scope of duty in the
Section 40(4) of the EA
contract
 CONT...
Summary
These instances in Kenyan law have been generalised to the following
DIsmissal
terms:
gross misconduct
Poor Performance
Physical Incapacity
Dismissal under the grounds above compell the employer to:
Inform the employee of the reasons of termination before firing them and have
a colleage of choice present during the explanation
Give the employee an opportunity to be heard (A fair hearing)
Give the employee a notice of termination to protect their right to fair
administration. This has been found mandatory by the court in Shankar
41 Saklani v DHL Holdings Ltd [2012] eKLR.
n o EA
c t
Se he
f t
o
 So, Summary Dismissal would look
Labour officer hears
like this:
both parties and
makes a decision on
If the termination whether the
was unjustified, the termination was
employee within unlawful
Employer fires three months
employee with or reports to a labour
without notice officer

Employee may
exercise the right to
fair hearing at the If the termination was
workplace unlawful, employer is
compensated or
reinstated
 This happens when an employer no longer requires the services of an
Redundancy employee or when the employee's services are no longer useful.
Usually, the employee is not at fault.

Section 40, of the

The employer must meet all of the requirements in section 40 of the EA for the termination to
be lawful. Failure to satisfy any of these conditions may render the termination unlawful.These
conditions are:

EA
If the employee is a member of a trade union, the employer must inform the trade union
and the labour officer at the area of employment; the reasons for and the extent of the
redundancy. This should happen not less than a month to termination date

If not a member of a trade union, a written notice is given to both the employee and
respective labour officer

The employer should consider the seniority, skill and reliability of the employee while
selecting who will be affected by the redundancy
 SEVERANCE PAY
CONT...
The employer must not place an employee at a disadvantage
This is the pay
due to their membership in the trade union. equivalent to 15-
days basic wages
The employer must pay the employee his/her leave due in
for every year you
cash
have completed
The employer must pay the employee not less than one working in the
month's wages in lieu of notice company
The employee must receive severance pay

Severance Pay
=
Salary for 15 days x No. of years worked
 The employer has to go
through a selection criteria
and carefully decide how the
affected employees are to
be chosen. This is
documented.
Employer pays the
redundant employee one
month's salary in lieu of
notice, severance pay as
well as any accrued leave
days.

If employee feels as if
Employer sends notification of termination was wrong,
intention to terminate he/she may file a suit for
employment to the employee,
The employer consults the wrongful termination.
the trade union and the
employee affected by
relevant labour officer
explaining the cause,
1 month
selection criteria and
extent of their redundancy.
The employee shares
opinions about the whole
process
 Termination of a
probationary contract can be Section 42(2)&(3)

n
io
initiated by either the Ideally, the

at
Probationary employer or the employee. contract is limited

in
Contracts to 6 months only

rm
Section 2 of the The minimum notice but can be

Te
EA period is 7days. The extended to 12
This is an employer can either give a months with the
employment 7-days notice or give agreement of the
payment in lieu of notice. employee.
contract that runs
for not more than 12 If termination is as a result of gross The employer
months, and it must misconduct, the employee does not must not prolong
be stated in writing have a right to a fair hearing or employment
that the conract is representation. Howvwer, this has under this
for a probationary been disputed as it infringes the contract for longer
period. employee's right to fair administrative than 12months or
justice the the time
Section 42(1)
agreed.
Wrongful/ Unlawful
Termination
Section 45 of the EA
This when :
an employee is fired without a justifiable reason;
an employer fails to follow proper procedure
before termination

Employee Employer

An Employee claiming unfair termination

An employer must justify termination by
must prove: either that the employer's reason
proving that:
for termination was invalid or that the
termination was substantially fair (reasons
employer did not follow fair procedure
for termination are valid)
according to law.
and fair procedure was followed
If successful: the employee is either:
(employer was given: notice in time(which
compensated, reinstated) or re-engaged. This was well explained), a fair hearing with a
is decided by the Labour Officer. represantative of choice, and all dues
(Section 49 of the EA) paid