We expect that there will be significant changes in employment law in Kenya in 2021; not only as a result of the global pandemic, but also due to prospective new legislation and unemployment fund.
There are two proposed bills which seek to amend the Employment Act, No. 11 of 2007 and currently pending Parliament's approval. The bills are intended to:
- give employees seeking to adopt a child, 3 months pre-adoption leave with full pay; and
- give all employers entering into a written contract of service with an employee, the ability to request that employees submit mandatory clearance certificates from relevant entities, including the Department of Criminal Investigation, the Ethics and Anti-Corruption Commission, Kenya Revenue Authority and Higher Education Loans Board.
The State Department of Labour and the Kenya Law Reform Commission also published a draft Employment (Amendment) Bill 2019 ("Draft Bill") (though it has not been tabled before Parliament). The Draft Bill seeks to introduce far-reaching changes in relation to implied employment, working hours and overtime, adoption, surrogacy and education leave. The Draft Bill also introduces a much needed provision addressing the automatic transfer of employees in the event of a transfer of business or an undertaking.
Although the Draft Bill was made public prior to the global pandemic, it also contains provisions relating to flexible working hours. It gives an employee the right to apply to their employer to change their terms and conditions of employment that relate to the times they are required to work from the place of business or at home. In our view, this is likely to be even more relevant and a key topic of discussion with employers currently looking to introduce working from home guidelines.
There are also plans by the government to tax employed Kenyan citizens to support those who are unemployed. The proposed tax is expected to set-up the Unemployment Insurance Fund ("UIF"). Employees will contribute 1% of their pay towards the UIF, with employers matching the employee's contribution. The UIF will support individuals in financial distress by providing them with short-term relief when they become unemployed or unable to work due to illness. No draft bill has been presented to Parliament yet, however this is likely to be another area of discussion in 2021.
Along with the proposed changes to the Employment Act, No. 11 of 2007, the Draft Bill and introduction of the UIF represent significant potential changes to the employment landscape in Kenya in 2021. Employers in Kenya should keep abreast of these developments throughout the course of the year.
Originally published by Taylor Vinters International Employment Law Update - 28 Jan 2021
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.