Kenya Employment Act of 2007

EMPLOYMENT ACT 11
OF 2007
PRESENTATION BY FEDERATION OF KENYA
EMPLOYERS.

OVERVIEW OF EMPLOYMENT
ACT,2007.
Contents of the Act:
• Preliminary
• General principles
• Employment Relationship
• Protection of wages
• Rights and Duties in Employment
• Termination and dismissal
• Protection of Children

CONTENT CONT.
 Insolvency of the Employer
 Employment Records
 Employment Management.
 Foreign Contracts of Employment
 Dispute settlement procedure
 Miscellaneous Provisions.

OBJECTIVES OF THE ACT.
 To repeal the Employment Act, Cap 226,
 To declare and define the rights of the
employees,
 To provide basic conditions of employment of
employees,
 To regulate employment of children, and to
provide for matters connected thereto.

PRELIMINARY- DEFINITIONS.
Child
 Defined child(16),
young person (16-
18)and juvenile(18)
Migrant Worker
 No provision
Child
 A person who has not attained
the age of 18 years.
Migrant Worker
 A person who migrates to Kenya
with a view to being employed by
an employer and any person
regularly admitted as a migrant
worker.
OLDACT PROVISION NEWACT PROVISION.

DEFINITIONS
Redundancy
 Did not apply to
domestic servants.
Probationary
contract:
 Not provided
Redundancy
 does not have an exclusion
of domestic servants.
(meaningall employees
includingdomestic servants
becomeeligible.)
Probationarycontract:
 A contract of employment,
which is of not more than
twelve months duration or
part thereof ; is in writing and
expressly stating it is a
probationary period.
OLDPROVISION NEWPROVISION

PRELIMINARY -
APPLICATION
 Excluded the armed
forces and those so
exclude by the
Minister.
 Exclude the armed forces,
those excluded by the
Minister after consultation
by the National Labour
Board.
 In addition excludes
employer and employer’s
dependants where the
dependants are the only
employees in a family
undertaking.
 Other new terms defined
include; dependent,
disability, forced labour, or
compulsory labour, HIV.
Old Act New Act

2. GENERAL PRINCIPLES
 No provision
 Chief’s Act Cap 128
-provided that – Able
bodied males aged
18- 45 years were
required to provide
community work for
60 days.
 Prohibition against
forced labour:
 work or service extracted
from anyone under threat
of penalty , loss of rights or
privilege , not offered
voluntarily by the person
doing the work or service.
 Include recruitment of
Children for use in armed
conflict
OLDACT NEWACT.

2.1 Discrimination in
Employment.
 No provision
 Protection accorded
through the bill of
rights chapter V
section 82 of the
Constitution.
 Prohibit discrimination on
grounds of race, colour , sex ,
language , religion ,political,
or other opinion, nationality,
ethnic or social origin,
disability, pregnancy, mental
status or HIV status.
 Prohibit discrimination in
recruitment ,training,
promotion, terms and
conditions of employment,
termination and any
employment matter.
OLDACT. NEWACT.

2.2 Discrimination in
Employment.
 No provision
 Obligations:
 Minister , labour officers and
Industrial court has obligation
to promote equality of
opportunity and to eliminate
discrimination in employment
including migrant workers or
family members lawfully in
Kenya.
 Employer to eliminate
discrimination in any
employment policy or
practice.
OLDACT NEWACT

2.2 .Discrimination in
Employment.
 No provision
 Exceptions:
 Affirmative action to
promote equality and
eliminate discrimination.
 Inherent requirement of a
job.
 Limited category of
employment in the interest
of state security.
 National policy to employ a
citizen.
OLDACT NEWACT

2.3 .Equal pay for work of equal
value
 No provision
 Employer obliged to pay
his employees equal
remuneration for work of
equal value.
 Employee for purpose of
this section to include
applicant for employment
and employer includes
employment agency.
 Burden of proof on
employer to prove no
discrimination.
 Offence to discriminate.

2.4. Sexual Harassment.
 No provision
 Definition:
 Request for sexual
intercourse, sexual contact
or any form of sexual
activity containing promise
of preferential treatment,
threat of detrimental
treatment or employment
status;
 Use of language , visual
material or show of
physical behavior of sexual
nature.
OLDACT NEWACT.

Sexual Harassment.
 No provision.
 Obligation:
 Employer with 20 or more
employees to issue sexual
harassment policy after
consultation with the
employees.
 Policy statement to contain
definition, declaration
against the act, steps to be
taken, disciplinary
measures, complaint
procedure and
confidentiality.
OLDACT NEW ACT.

4.Employment Relationship
 Contract of
Service:
 Written contract –
any engagement for
6 months
aggregate.
 Contract of service:
 Written contract – any
engagement for 3 months
aggregate.
 Duty of employer to reduce
contract into writing.
 Employee to sign contract or
thumb or finger print.
 Where an employee is
illiterate it the responsibility of
employer to explain terms of
the contract to the employee.
OLDACT. OLDACT.

4.1 Contract of Service
 Employment
Particulars;
 No requirements in
Cap 226
 Employment
Particulars;
 The details required
include the name, age,
sex, job description,
place of work
,commencement date
and hours of work.
 Remuneration scale
and rate including
calculation method and
payment intervals.
OLDACT. OLDACT.

4.1 Contract of service
 Employment
particulars:
 No particulars were
required under Cap
226.
 Employment particulars:
 Other particulars include;
leave entitlement , public
holidays, sick leave,
pensions and pension
schemes, length of notice
and any existing CBA
which affect the employee.
 Any assignment outside
Kenya for more than 1
year the terms, currency of
benefits and terms on
return.

4.1 Contract of Service
Employment
particulars;
 No provision.
Employment particulars;
 All changes to contracts of
service must be in writing.
 The employment records
to be maintained for 5
years after termination of
employment.
 Burden of proving or
disproving an alleged term
of employment stipulated
in the contract shall be on
the employer.
OLDACT. NEWACT.

4.2 Disciplinary policy.
 No provision
 Provide written disciplinary
policy and procedure-at
least 50 employees.
 Have appeal system .
 Avail / accessibility of CBA.
 Display statement of
employee’s rights.
 Offence kshs.100,000 or to
2 years imprisonment or
both.
OLDACT. NEWACT.

4.2. Disciplinary Policy and
Procedure
 No provision.  Industrial Court may
confirm particulars,
amend particulars ,
substitute
particulars and
penalise
contravention.
OLDACT. NEWACT.

5.PROTECTION OF WAGES.
Payment, disposal and
recovery of wages ,
allowances:
 At the request of the
employee payment may be
made in cash or through
his account.
 Guarantee 4 months pay
where court orders against
employer in favour of a
creditor.
Payment , disposal and
recovery of wages,
allowances:
 Payment in cash, account ,
cheque , postal order or
money order.
 Guarantee of employee’s 6
months salary where an
employer is insolvent.
 Employer not to limit
employee’s disposal of
wages.
OLDACT. NEWACT.

5.1.Payment , Disposal and
recovery of wages
 Employer not to limit
employee’s right to
disposal of wages.
 General offence of
kshs.100,000 fine or 3
months imprisonment.
Deductions;
 Same as new
Act(Section 6)
 Contravention of the
provision is an offence
punishable by fine of
kshs.100,000/= , 2 years
imprisonment or both.
Deductions(section 19);
 Repayment of loan granted
by an employer deduction not
to exceed 50% of the wages
after other deductions.
OLDACT. NEWACT.

5.2. Deductions
 Overall deductions
not to exceed ½ of
employee’s salary.
 Deductions not to exceed
two thirds of employee’s
wages.
 Employer’s duty to remit
deduction when due or as
instructed( fine of
kshs.100,000/= or two
years or both.
 Employer to refund
employee money
deducted, pay the
beneficiary from own funds
and may be fined.
OLDACT. NEWACT.

5.3. Itemised pay statement.
 No provision.
 Employers duty to give
a statement before or at
the time of payment.
 Particulars to be given
include ; gross amount,
the deductions and
purpose thereof,
amount and method of
payment where parts of
the amount are made in
different way.
OLDACT NEWACT.

5.3 Itemised pay statement.
 No provision.
 Not to be issued to
casuals , those
engaged on piece or
task rates or for periods
of less than 6 months
or those exempted by
the minister.
 Re-issue consolidated
statement of statutory
deductions every 12
months.
OLDACT. NEWACT.

5.2. ITEMISED PAY
STATEMENT
 No provision
 Amount of deductions,
time intervals of
deductions and purpose.
 Security bond for employer
who is not incorporated in
Kenya ,equivalent of one
month pay for each
employee.
 Bond to be held by the
minister in separate
account.
OLDACT. NEWACT.

5.4. Death of Employee.
 Wages and
property to be
delivered to the
labour officer or DC
for on ward
transmission to the
legal representative.
 Wages and property to be
given to the legal
representative within 30
days.
 Employer to inform the
labour officer or DC of
death within 7 days.
 When no legal
representative is available
within 3 months moneys to
be paid to labour officer or
DC to be applied in
accordance with
Succession Act.
OLDACT NEWACT.

6. RIGHTS AND DUTIES IN
EMPLOYMENT.
Basic conditions of
Employment:
 Provided for the
basic conditions of
employment.
Basic conditions of
Employment:
 Specify that the rights and
duties of employment
constitute basic conditions
of employment.
 More favourable terms in
regulations , CBA, or
contracts or under any law,
industrial court awards
supersedes the minimum
conditions.
OLDACT. NEWACT.

6.2 . Hours of Work.
 No provision
 One rest day in every
period of seven days.
 Mainly regulated as per
the regulations made
under the Regulation of
Wages and Conditions
of Employment Act,
Cap 229.
 Employer to
regulate hours of
work of each
employee.
 One rest day in
every period of
seven days.
 Regulations under
Cap 229 retained
and still applicable.
OLDACT . NEWACT.

6.3. ANNUAL LEAVE.
 21 working days.
 No qualification on
administration.
 21 working days
 Qualifications; leave
may be taken in two
parts but employee to
be availed two weeks
uninterrupted.
 Accrued leave to be
taken within 18
months.
OLDACT. NEWACT.

6.4. MATERNITY LEAVE.
 Female employee
entitled to 2 months
maternity leave and
forfeiture of annual
leave for that year.
 No further provision.
 Female employee entitled
to 3 months maternity
leave in addition to annual
leave.
 Women not to be
discriminated on account
of proceeding on maternity
leave.
 To give at least seven days
notice when proceeding on
leave
 Medical certificate to be
availed to employer.
OLDACT. NEWACT.

6.4. MATERNITY LEAVE.
Paternity Leave
 No provision
Paternity Leave
 Male employee
eligible for two
weeks paid paternity
leave .
OLDACT . NEWACT.

6.6. SICK LEAVE.
 Same
 General order
provides for 30 days
leave with full pay and
a further 15 days
leave at half pay.( cap
229 regulations).
 After two consecutive
months service 7 days
leave with full pay and a
further 7 days at half pay in
every period of twelve
months.
 General order and the
other orders issued under
Regulation of Wages and
Conditions of Employment
Act with more favourable
terms to continue.
OLDACT NEWACT

6.7. HOUSING.
 Same (though not
expressly provided)
 Water (section 10 of
cap226).
 Food (section 11)
 Employers allowed
to pay consolidated
salary,
 Provision of food
and water.
OLDACT. NEWACT.

6.7.MEDICAL ATTENTION.
 Section 12 cap 226
and the
Employment
Medical Treatment
Rules- L.N. No.157
of 1977.
 Sufficient and proper
medicine and medical
attendance during illness.
 No liability where illness is
contracted when an
employee was absent
without permission or self
inflicted.
 When free medical
treatment is offered by the
Government or any
insurance scheme.
OLDACT NEWACT.

6.8 CASUAL EMPLOYMENT
 A person the terms of
whose engagement
provide for his
payment at the end of
each day and who is
not engaged for a
longer period than
twenty four hours at a
time
• Same
• If a casual employee works
for a continuous period of
six days he will be entitled
to one rest day each week.
• Conversion of casual
employment to term
contract after continuous
period of not less than one
month or aggregate of
three months.
OLDACT NEWACT

6.8 CASUAL EMPLOYMENT
 No further provision
 A casual employee who has
converted to term contract
shall be entitled to all benefits
under the Act after two
months continuous service.
 Continuous period shall
include one rest day after
every six days and public
holiday.
 Casual employee may
complain to labour office and
Industrial Court may vary the
terms.
OLDACT NEWACT

7 TERMINATION OF CONTRACT
OF SERVICE
Probationary
Contract
 Not provided for in
Cap 226 but in Cap
229 under
regulations, but not
compulsory
Probationary Contract
 Six months probation
with a possible
extension of upto six
months.
 No further extension
after twelve months
 Termination by seven
days notice
 Reason for termination
not provided for.
OLDACT NEWACT

7.2 SERVICE PAY (GRATUITY)
 Not provided for in
Cap 226
 Service pay at a rate
to be prescribed for
each completed year
of service upon
termination
 Not applicable where
pension, provident
fund and NSSF or
CBA has provision.
OLDACT NEWACT

7.3 TERMINATION NOTICE
 Notice pay – basic
salary only
• Payment (all remuneration)
in lieu of notice
• Waiver of notice period or
part thereof entitles
employee to payment of
remuneration equivalent to
notice period waived.
• Hearing before termination
on grounds of misconduct,
poor performance and
physical incapacity
OLDACT NEWACT

7.3 TERMINATION NOTICE
 No further provision
 Employee entitled to be
accompanied by a shop
steward or another
employee to the
hearing.
 Rules of natural justice
to apply
 Reason for
termination/dismissal to
be given and must be
valid and fair.
OLDACT NEWACT

7.4 REDUNDANCY
• Cap 226 S.16A
• Notification to union and
Labour Officer on reasons
for and extent of intended
redundancy.
• No minimum period of
notification required
• No requirement for non
union members to be given
notice and reason of
intended redundancy.
• Notification to trade union
where employee is a
member and Labour
Officer reasons for and
extent of intended
redundancy not less than a
month before redundancy.
• Where the employee is not
a member of a trade union
the employer notifies him
personally in writing and
the Labour Officer one
month in advance.
OLDACT NEWACT

7.4 REDUNDANCY
 Minister may require
employer under
certain circumstances
to insure employees
against redundancy
 No discrimination on
account of being a
union member when
setting out terminal
benefits or the
process
OLDACT NEWACT

7.5 SUMMARY DISMISSAL
 Gross misconduct
S. 17 Cap 226
 Custody 10 days
• Employer may summarily
dismiss an employee who
has by his conduct
fundamentally breached
his obligation under the
contract.
• Is guilty of gross
misconduct.
• S.44 sub-section – Gross
misconduct.
• Custody 14 days.
OLDACT NEWACT

7.5. SUMMARY DISMISSAL.
 No provision.  Employer to prove
reason for dismissal
and reason must be
genuine.
 Termination without or
with less notice than
the employee is
entitled to is
prohibited.
OLDACT NEWACT.

7.6. UNFAIR TERMINATION
 No provision
• New concept in the act.
• Unfair termination
prohibited .
• It is unfair termination
where employer fails to
prove valid reason, fair
reason and follow proper
procedure.
• Right available to an
employee of at least
thirteen months standing.
OLDACT NEWACT.

7.6 UNFAIR TERMINATION
 No provision
• Following reasons
constitute unfair
termination
– Going or applying for an
entitled leave, pregnancy,
membership to a trade
union, participation in trade
union activities, holding or
seeking office of a trade
union, joining or
withdrawal from trade
union
– Race, HIV status,
complaint or proceeding
against employer
OLDACT NEWACT

cont.
 No Provision
 Participation in lawful strike
 If an employer does not act
in accordance with justice
and equity.
 Determining whether
employer acted with justice
and equity takes
consideration of;
 Procedure adopted to
reach decision
OLDACT NEWACT

 No provision.
 Handling of an
subsequent appeal
 Conduct and capability
of employee
 Extent of employers’
compliance with
statutory requirement
 Employers’ previous
practice
 Existence of any
previous warning
OLDACT NEWACT

7.7 RIGHT TO COMPLAIN TO
LABOUR OFFICER
• Complaint of summary dismissal and
unfair termination to be made within 3
months
• Right is in addition to right to complain to
the Industrial Court and also the right co
complain of any other infringement of the
employee’s statutory CBA rights.
• Burden of Proof:
– Unfair termination – employee
– Justification for termination – employer
– Right not available to probationary –
employee
– No representation by advocate before
labour officer
OLDACT NEWACT

7.8 REMEDIES FOR UNFAIR
TERMINATION/WRONGFUL
DISMISSAL
 S.15 Cap.234 –
Reinstatement for
wrongful dismissal
 Non-compliance –
fine of 2000/- per
month in default
 12 months
“monetary wages”
 Reinstatement
under the same
terms and
conditions
 Re-engagement in
comparable jobs
 Twelve (12) months
gross wages,
subject to statutory
deductions
OLDACT NEWACT

7.9 CONSIDERATION BY
LABOUR OFFICER OR
INDUSTRIAL COURT
 No provision
• Wishes of employee
• Circumstances in which
termination took place
• Practicability of
reinstatement/re-
engagement
• Common law principle on
specific performance
• Length of service
• Opportunities of securing
comparable employment
OLDACT NEWACT

7.9 CONSIDERATION BY
LABOUR OFFICER cont.
 No provision
• Value of severance pay
• Right to press claims or any
unpaid wages/expenses or other
claims
• Reasonable expenses incurred
by employee in respect of
termination
• Contributory conduct of
employee and failure to mitigate
losses
• Any compensation received e.g
ex-gratia
• Employee to be given certificate
of service
• Fine 100,000/- or six months
imprisonment or both
OLDACT NEWACT

8. PROTECTION OF
CHILDREN
 Cap. 226:Protection
of Women and
children.
• Restricted to children
and protection widened
• Not limited to direct
child employment
• Covers child assisting
any other person who is
paid e.g. father
• For gain for other
person or institution
under contract of
service
OLDACT NEWACT

8. PROTECTION OF
CHILDREN
 No provision
 Worst forms of child labour
include trafficking in
children, child prostitution,
debt bondage or serfdom,
forced compulsory use of
children in military conflicts
 Use in procuring or offering
child for prostitution,
production of pornographic
literature or performance
OLDACT NEWACT

8. PROTECTION OF
CHILDREN cont.
• Minister may in consultation
with the board declare worst
forms of child labour
• Labour officer can cancel or
suspend contract
• Employer has a right to
appeal against decision of
labour officer to Industrial
Court within 30 days
• Decision of industrial court
final
• An offence to continue
employing a child against
LO’s order
OLDACT NEWACT

8. PROTECTION OF
CHILDREN cont.
 No provision
• Employment of child below 13
years prohibited
• Employment of child between
ages of 13-16 years other
than in light work prohibited.
No written contracts allowed.
No work in industrial
undertaking.
• Contravention Kshs.100,000/-
fine or 6 months jail or both
• Employer to keep register of
child in employment (age,
date of birth, commencement
and termination of
employment)
OLDACT NEWACT

8. PROTECTION OF
CHILDREN cont.
• Medical examination of child
by an authorised officer
• Use of a child by any person
in worst forms of child labour
an offence – fine
Kshs.200,000/-, jail 12
months or both
• Penalty in case of death and
injury in addition to other
penalty – fine Kshs.500,000/-
jail 12 months or both
• Limitation of actions under
the Act – 3 years
OLDACT NEWACT

9. INSOLVENCY OF AN
EMPLOYER
 Employee to receive
4000/-
• Minister may order
payment to employee from
NSSF where employer is
insolvent and employment
terminated
• Debt to payable to
employee include:
– Wages arrears of between
one to six months
– Amount of notice period
– Payment in lieu of leave
– Basic award of
compensation for unfair
dismissal
OLDACT NEWACT

10. EMPLOYMENT RECORDS
• Employer required to keep the
following records and permit
authorised officer to inspect them:
• Policy statement on sexual
harassment
• Employment particulars (ss.10&13)
– Name, age and permanent address of
employees
– Name of employer, job description
– Commencement date of employment
– Form and duration of contract
– Place of work, hours, remuneration,
intervals of payment
– When continuous employment started
and other prescribed particulars
OLDACT NEWACT

11. EMPLOYMENT RECORDS –
cont.
• Statement on disciplinary rules and
changes thereon (ss.20&21)
• Itemised pay statements and statutory
deductions
• Weekly rest days (S.27)
• Annual leave entitlement, days taken and
due (S.28)
• Maternity leave (S.29)
• Sick leave (S.30)
• Particulars of accommodation provided or
house allowance paid (S.31)
• Food ration if applicable(S.33)
• Registers of child in employment (S.61)
• Records to be kept for at least 36 months
OLDACT NEWACT

12. EMPLOYMENT
MANAGEMENT
• Applies to employer with at least
25 employees
• Notification of vacancies to
include
– Employers full name and
address
– Vacant post – when created and
on termination
– Qualifications (minimum)
– Place of work
– Type of Work
– Notification of terminations and
abolition of post within two weeks
of termination or abolition
OLDACT NEWACT

12. EMPLOYMENT OF
MANAGEMENT cont.
 Employer to keep register
of employees:
• Full name, age, sex,
occupation, date of
employment, nationality,
level of education
• Annual returns of
employees each calendar
year.
• Contravention: Fine of
100,000/- or six months in
prison
OLDACT NEWACT

PART XI – FOREIGN
CONTRACTS
 Penalty – Fine of
Kshs.2,000/- or 12
months
imprisonment
 Act repeats
definition in S.19 of
repealed Cap.226
 Penalty
Kshs.200,000/-
(fine) or 6 months
imprisonment or
both
OLDACT NEWACT

PART XII – DISPUTE
SETTLEMENT PROCUDURE
 Dispute to be
referred to Labour
Officer, then 1st
and
2nd
Class Magistrate
 Civil Court System
 Kshs.1,000/- fine –
imprisonment 3
months (S.48)
 Dispute to be referred
to labour officer or
Industrial Court
 Restrictions of labour
disputes to Industrial
Court only
 Disputes to be filed
within 3 years
 General penalty
kshs.50,000/- or three
months imprisonment
or both
OLDACT NEWACT

PART XIII – MISCELLANEOUS
PROVISIONS
• Minister may make rules
to implement Act
• Rules to cover following
areas:
a) Prescribing what
needs to be prescribed
- Additional employment
particulars (s.15)
- amount to be deducted
from employee’s salary
- Report of death or
incapacity of employee
(S.24 (5)
OLDACT NEWACT

PART XIII – MISCELLANEOUS
PROVISIONS – cont.
• Insurance against risk of
redundancy (S.40) (3)
• Light work for children
(S.56) (3) and conditions in
which they are employed
• Additional records to be
kept by employer (S.74)
(1) (m)
b) Housing conditions (S.31,
32)
- sanitation, water supply
and exemptions
OLDACT NEWACT

PART XIII – MISCELLANEOUS PROVIONS
– cont.
S.92 – REPEAL OF CAP 226
 Cap 226 now
repealed
 Same area
coverage
• Cap. 226 repealed
• Retains provision: “Except
where otherwise provided,
the provisions of the Act
shall be in addition to and
not be in substitution for or
in derogation of the
provisions of any other Act”
• Existing contracts to be
subject to provisions of this
Act
OLDACT NEWACT

Kenya Employment Act of 2007

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Kenya Employment Act of 2007