Employee Management

Covid-19 pandemic : Contractual and labour laws (part 2 of 3)

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This is the second part of a 3 article series on impact of Covid-19 pandemic: Contractual and labour law s.
Employment Issues
The Government of Kenya continues to encourage where possible for Government officers, Companies and business personnel to work from home. Employees working however in critical essential services are exempted from home working. Despite this advice from Government, it is immensely essential for workers to take collective responsibility at the workplace to curb the spread of the virus.

Occupational health and safety
The Kenya Occupational Safety and Health Act, 2007 , obligates an employer to ensure that a workplace is healthy and safe for visitors, clients and employees. In the present circumstances, employers are encouraged to take reasonable measures at the workplace to protect employees from COVID-19 and ensure safety of the employees is prioritized.
Employers ought to be proactive in educating employees about the various precautions which people are required to take. Furthermore, employers may ensure that high hygiene standards are maintained at the workplace through provision of sufficient hand sanitizers at points of entry to their offices as well as working stations.

Sick leave
In light of the Covid -19 pandemic contractual and labour laws. Across the Globe, Governments have been encouraging people who suspect to have the COVID-19 to self-quarantine. The Regulation of Wages (General) Order stipulates that an employee is entitled to a sick leave of thirty days with full pay per year and 15 days’ sick leave with half pay per year. In contrast, the Employment Act, 2007 provides that employees who have been in employment for two consecutive months are entitled to a seven-day sick leave with full pay and a further seven days with half pay each year. This act touches Covid-19 pandemic contractual and labour laws Based on practice and case law, it is settled that the provisions of the Regulation of Wages (General) Order supersede the provisions of the Employment Act 2007. This position was upheld in the case of Sylvester Oduor Othwila vs. Phoenix Aviation Limited [2014] eKLR where the Court held as follows:
“Section 30 of the Act provides for sick leave at 7 days with full pay and 7 days on half pay. However, the Regulations under the repealed Employment Act (Cap 226) which remain in force provide for 30 days full pay and 15 days half pay. Since the provision in the regulations under Cap 226 is more advantageous to employees, employers are expected to apply them in calculating sick leave.”
Based on the above, The sick leave periods provided under the contract of employment or otherwise through legislation can be invoked in the wake of this pandemic.

Place of work
The current Kenyan Labour Laws do not regulate the place of work. Nevertheless, most employment contracts explicitly indicate the workplace. In most cases, it is merely the location of the business, company or organization. That Notwithstanding, given the Government’s appeal for employers to allow employees to work from home, employers should make arrangements with employees in this regard.

The Kenyan labour laws are silent on the procedure to be followed by employers in case of the occurrence of a Pandemic such as COVID-19. On that note, The Kenya Centre for Disease Control and Prevention (the “CDC”) published a manual called “the Interim Guidance for Businesses and Employers” that provides some strategic measures for adoption by employers. The measures include:

  • Having work from home policies to allow employees to work remotely;
  • Communication to employees about the virus, symptoms, how it is spread and measures that employees should adopt to curb the spreading of the virus;
  • Limiting travel especially to high-risk areas;
  • Encourage employees who have travelled to high-risk to quarantine for at least fourteen days; and
  • Replacing physical meetings with conference calls.

Salary Reductions

It is important to note that salary reductions amount to a fundamental variation of the employment contract even during these times. The cardinal rule is that an employment contract cannot be unilaterally varied by one party without the consent of the other party. Despite a company facing financial difficulties during these times, salary reductions must only be effected upon amicable discussions between the employer and employee an aspect that ought to be covered with regards to Covid-19 pandemic contractual and labour laws. The parties are obligated to discuss and reach an agreement in that regard for salary reductions to be implemented. If an employer attempts to impose salary reductions on employees without their consent, such employees are entitled to either resign or claim constructive unfair dismissal or in other circumstances continue to work under protest but go ahead to sue for compensation of losses attributed to the forced salary reduction.

Ultimately, if employees refuse to give their consent to salary reduction, then an employer has the option of terminating the contract of employment by giving them their contractual notice pay and offering a new contract with new reduced salary terms.

(Part 3 will be published on 28th April 2020)

Jasper Lubeto
Partner, TLO Law Advocates Associates
Email: lubeto(at)tlolaw.co.ke

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