Draft employment law introduces ‘flexi time’, surrogacy leave

The draft Bill also proposes that an employee is entitled to be provided with a written statement of the reasons for dismissal. FILE PHOTO | NMG 
 By WILLIAM MAEMA

The draft Employment Act (Amendment) Bill, 2019 published by the Kenya Law Reform Commission in April introduces novel concepts into Kenyan employment law which, only a few
years ago would have been considered anathema at the workplace.

Technology has created the reality of a virtual workplace which enables employees to work from any location without having to report to the office at all save for essential face to face assignments like meetings which are increasingly also being conducted via video or teleconference.

Flexi time, as it is called, also means that there are no mandatory working hours provided that the employee is able to work from elsewhere and deliver on their assignments. It is argued that this concept is good for ‘work-life’ balance especially for employees who may need to attend to personal chores while working from home or the gym.

The draft law provides that any employee is entitled to apply for flexible working hours and the employer is bound to consider such an application and respond to them within a reasonable period. An application will only be refused on one or more of the grounds set out in the proposed law such as where the request imposes an additional financial burden on the employer, it has a detrimental effect on the employer’s ability to meet customer demands, the employer is unable to re-organise work among the existing staff or is unable to recruit additional staff, it results in a detrimental impact on quality and performance or there is insufficient work during the hours when the employee proposes to work. This list is not exhaustive and the Cabinet Secretary can prescribe more grounds.

In addition, the draft law introduces novel kinds of leave which, although new in Kenya, are in line with modern global trends. For instance, it has always been unclear whether a woman who has a stillbirth is entitled to maternity leave or sick off. The proposed law grants such a worker one-month leave with full pay.

Since men have been known to misuse paternity leave, henceforth the application for paternity leave will be accompanied by a birth notification of the child in question.

An employee who adopts a child aged two years and below will be entitled to adoption leave of one month with full pay. Where a child is born pursuant to a surrogate motherhood agreement, the commissioning parent will be entitled to two months leave upon the birth of the child. This provision, in effect, gives legislative recognition to the validity of surrogate agreements. It is instructive to note that it does not state whether the ‘commissioning parent’ should be male or female. It is, however, curious that this parental leave is shorter than maternity leave yet the needs of an infant born through surrogacy arrangement are no different from those of one born to its own biological mother.

Compassionate leave has been a matter of company policy or discretion of the employer. The draft law provides that an employee who has exhausted their annual leave may be granted up to five days compassionate leave upon the death of a parent, spouse, child or sibling. The implication inherent in this wording is that employees will only be eligible for compassionate leave if they have already used up their annual leave.

This position is worse than the current situation where employees are normally granted compassionate leave irrespective of the status of their annual leave account. The definition of ‘sibling’ should also be limited to immediate blood brothers and sisters to prevent abuse.

Sick leave has been enhanced from 15 to 30 days with full pay and a further 15 days with half pay. However, the law should go further to clarify what should happen after the exhaustion of both. Should the employer terminate the contract or allow the employee to proceed on unpaid leave and if so, for how long?

Perhaps to encourage employees to pursue further studies, the draft law provides for an education leave of 10 days per leave cycle to enable the employee to take examinations at a recognised learning institution.

The draft Bill also proposes that an employee is entitled to be provided with a written statement of the reasons for dismissal. This entrenches the fact that ‘you’re fired’ is no longer part of Kenyan employment law.

However, since there is no corresponding duty upon the employee to give any reasons to the employer for resignation, most employees simply quit whenever they find a new job without giving notice, irrespective of the cost and inconvenience suffered by the employer as a result of abrupt resignation. To instil discipline among employees and balance the scales somewhat, the law should provide for a certain amount of liquidated damages over and above the contractual amount payable in lieu of notice to be paid to the employer by an employee who deserts employment without giving the requisite notice.

Employers routinely lose cases in the employment court for failure to adopt a fair termination/dismissal process yet the Employment Act does not set out what that process entails in detail. This has given the courts the leeway to decide subjectively whether the process adopted by the employer was fair or not.

Considering that employers read or understand court judgments, this so called mandatory process remains largely unknown until it is breached. The proposed law seeks to lay down the mandatory steps required to be taken by the employer in order for the process to meet the threshold of fairness required by the statute. The essentials of the process are that the employee must be made fully aware of the charge against him, be given an opportunity to be heard and informed of the right of appeal.

In light of the hefty damages normally awarded to employees on account of fair termination arising from breach of the process, the proposed law should set out all the procedural steps more elaborately in a schedule to the Act.

While the Employment Act recognises that a disciplinary process is an internal affair that should not include external participants such as advocates, by deleting that subsection the draft allows advocates to participate in such proceedings. This is likely to complicate matters for employers and make the proceedings unnecessarily confrontational. Employers may be forced to hire their own lawyers to attend the proceedings which are a significant cost especially for those with hundreds of employees where disciplinary proceedings are a regular occurrence.

The Employment Act expressly provides that employees on probation are not entitled to the disciplinary procedure prescribed for confirmed employees. The courts have expressed serious reservations on the constitutionality of such a provision. The draft law takes the same view and accords employees serving on probation the same right to the due process as confirmed employees.

The issue of whether every employee is, upon termination of employment, entitled to service pay has never been clear under Kenyan law. While for unionised staff the collective bargaining agreement is usually clear that service pay is a matter of right and will be computed in accordance with a pre-agreed formula, the Employment Act makes provision for service pay but does not indicate how it is to be computed.

It complicates the matter further by subjecting service pay to numerous exceptions which render it almost unavailable to an employee unless the employee is in breach of his obligations to the NSSF.

Maema is a Senior Partner in the law firm of Iseme, Kamau & Maema Advocates. wmaema@ikm.co.ke