Many organisations today, regardless of their core business area, rightfully regard their human capital as their most valued resource. Successfully running a business entity requires the most talented hands on deck and it goes without saying that the HR department and how it is run has always been, and will remain one of the most critical functions within any organisation.
In designing the HR function, a lot of emphasis is often placed on the recruitment and retention of the best talent, with the relationship between the organisation and its people governed by carefully considered employment contracts. We however often find that beyond signing employment contracts, not enough emphasis is placed on preparing the various policies required to regulate the relationship between the organisation and its people. The complexities of human resource management require a more robust set of rules and guidelines than may possibly be outlined in any employment contract, hence the need for organisational policies.
Not all policies are created equal as there are those which are mandatorily required by law and those which are not mandatory. Despite not being legally required in Kenya, having non-mandatory policies is widely considered a matter of best practice and, given the nature of Kenya’s fragmented employment and labour law regulatory framework, it would be imprudent for any organisation to overlook these.
| Mandatory Policies | Non-mandatory policies* |
|---|---|
|
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The list above is not exhaustive but sets out what we consider as bare minimum requirements based on our experience.
All of the above-listed policies may be documented in separate policy documents, or in one document typically referred to as a “HR Manual” or “HR Handbook”. Either approach is feasible but in the authors’ professional view, best practice lends itself towards the latter. Due to the fragmented and segmented nature of Kenya’s employment and regulatory framework, it is more logical to consolidate all applicable HR policy guidelines in a single reference manual as opposed to creating yet another set of disjointed policy documents.
It is also important to note that HR policies, processes and procedures are not necessarily the same thing and each ought to be provided for within the organisation’s HR manual. We also recommend including HR-related processes and procedures within a single consolidated HR manual or handbook alongside the organisation’s policies. The advantages of having a single consolidated HR manual should be balanced with the need to ensure that the manual is concise yet comprehensive, as precise as possible yet flexible enough to cater for novel situations, practical but legally enforceable by the organisation, and simple enough to be easily read and understood by all cadres of employees.
Once a compliant HR manual has been put in place, it is critical to ensure that the manual is reviewed regularly (and preferably annually), to ensure that it remains compliant with the ever-evolving legal and regulatory framework.
We set out below some of our recommended do’s, don’ts and why’s relating to HR manuals:
| The Do’s | The Don’ts | The Why’s | |
|---|---|---|---|
|
1) |
Engage qualified professionals in developing, updating or reviewing the manual. |
Download generic policies from the internet or rely exclusively on AI drafting tools. |
Need to adapt the manual to organisational culture, vision, mission, industry-specific best practices, and legal and regulatory requirements. |
|
2) |
Customize specifically to Kenya’s legal and regulatory framework. |
Apply group-wide/global policy manuals to your Kenyan operations. |
Need to comply with Kenya law-specific requirements which would be different from that in other countries where the group operates. |
|
3) |
Annual compliance review. |
Apply an initial set of policies long term without regular review. |
The legal/regulatory requirements in Kenya are ever-evolving as a result of changes in legislation and case law. |
|
4) |
Ensure consistency with employment contracts. |
Overlook regular review of employment contracts for consistency with policies and vice versa. |
Any inconsistencies will be interpreted against the employer. |
|
5) |
Ensure consistent application and consistency with the organisation’s practices. |
Implement practices that are inconsistent with organisational policies and procedures. |
Corporate practices may become binding even where these are at odds with intended policies. |
|
6) |
Avail the manual to employees at the onboarding stage, preferably together with the employment contract. |
Onboard employees without providing the manual. |
Employees are not legally bound by undisclosed policies. |
|
7) |
Inform employees of any subsequent changes to the manual. |
Assume policy changes apply automatically. |
As above, undisclosed policy changes will not be binding to employees. |
|
8) |
Include within employment contracts a general reference to the application of organisational policies, processes and procedures as and when enacted. |
Make any specific policy or version of a policy manual a term of employment contracts. |
Allows the organisation the leeway to amend, vary or update the policies as and when necessary without having to first consult employees. |
In our experience, failing to abide by these will expose an organisation to significant potential legal liability. As you would already know with employment relations in Kenya, for any organisation, running into an internal HR-related complaint, investigation, dispute or court case, is really not a question of “if” but “when”.
Employees and trade unions are increasingly becoming more adept at individually and collectively agitating for their employment and labour relations rights, and having legally compliant contracts and HR policy manuals is a tested way to ensure that your organisation minimises its non-compliance risks. We are also witnessing increasing cases of “ambulance chasing” in employment matters, where employees are actively being approached in an attempt to identify employer organisations with any employment or labour-related non-compliance issues resulting in increased collective labour action against such organisations. Now more than ever, it is important for organisations to conduct legal compliance reviews of their employment arrangements, employment contracts and the often overlooked HR policies.
Reviewed by ENS Executive in Kenya, Mahesh Acharya
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.