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The Coronavirus (COVID-19) pandemic has led to an unprecedented uncertainty in the workplace. The global community been forced to completely alter their way of life in a bid to save humanity. As a result, challenges have arisen in the Employer-Employee relationship. Employers have been forced to either completely shut down their operations or allow their staff to work from home while employees have also been left in limbo. It’s imperative to scrutinize the Kenyan Employment Law and determine what is the legal position on the Employer-Employee relationship in the wake of the pandemic?
Alteration of the Contract of Employment
The employment relationship is a contractual relationship. It is premised on agreed terms. The Covid-19 pandemic has however made it impractical for employers to maintain their wage bill forcing them to either lay off staff or reduce employee salaries. This will result in the need for employers to vary the contracts of employment.
Salary Reduction
Section 10(5) of the Employment Act 2007 states that an employer should consult with the employee before any variation to the employment contract specifically when such variation would adversely affect the employee or take away any benefits enjoyed by the employee.
An employer cannot unilaterally come up with decisions that affect the contract without the employees’ consent. Hence, where an employer opts to reduce the employee’s salaries/benefits, it must be with the consent of the employees.
Where an employee does not consent to a salary reduction, a force majeure may arise. This is where the employer may be forced by circumstances to terminate your employment.
The impact of a force majeure clause is the non-performance of contractual obligations. Parties may choose to discharge the contract under the doctrine of frustration because the contract is impossible to perform.
Layoffs
If an employer opts to lay off staff, the law dictates that employees should to be notified.
In the case of Gladys Agayo -v- Somak Travel Ltd [2015] eKLR; the Court Held that:
“where there is a need to reduce employees due to a business need, consultations and notification to the affected employees is mandatory. This is necessary as the affected employee has done nothing wrong. The termination has only arisen due to a business reality that must be addressed and the position held by the employee has to cease and thus affect the employer and person behind that position.”
However, the procedure of redundancy under section 40 of the Employment Act must be applied.
The Court in the case of Timothy Mabeta Kambuni versus Bedson East Africa Limited, Cause No.995 of 2013 Held;
“The law on redundancy exists for a purpose. That purpose is to guide an employer who is faced with a difficult commercial situation to put in motion measures so as to avoid further difficulties and losses. These measures include systematic lay off of employees whose positions cannot otherwise be sustained due to the commercial difficulties.
When an employer cites redundancy as the reason for termination of an employee, the provisions of section 40 of the Employment Act apply.”
Employees who are laid off are however entitled to the following:
Leave
During this period employers have understandably resorted to sending their employees on indefinite leave or made work from home arrangements. In the foregoing, there is therefore need to examine the legal position with respect to leave.
According to the Employment Act,2007, there are four types of leave;
a) Annual Leave
After every twelve (12) consecutive months of service, an employee is entitled to annual leave of not at least 21 working days with full pay. It can however be at different intervals with the consent of your employer.
An employee can accumulate leave but it must be taken within 18 months.
b) Maternity leave
A female employee shall be entitled to three months maternity leave with full pay while a male employee shall be entitled to two weeks paternity leave with full pay.
According to Section 29(7) of the Employment Act, no female employee shall forfeit her annual leave entitlement under section 28 on account of having taken her maternity leave.
c) Sick leave
You are entitled to sick leave not less than seven days with full pay and thereafter to sick leave of seven days with half pay, in each period of twelve consecutive months of service;
d) Compassionate leave & Bereavement leave
Compassionate leave & Bereavement leave are taken when a member of an employee’s immediate family or household dies or contracts or develops a life-threatening illness or injury. In Kenya, this leave is not provided for by law and is generally up to the company’s policy, employment regulations or Collective Bargain Agreements to determine which direction to approach the compassionate leave from.
Are you Entitled to annual Leave After being sent on indefinite leave?
Assuming you have worked from January and were sent on compulsory leave on 1st April, 2020, when the government fully implemented the lockdown. Are you entitled to go for leave for the four months you have worked?
Section 28 of the Employment Act, 2007 states that after every twelve (12) consecutive months of service, an employee is entitled to annual leave of not at least twenty one(21) working days with full pay.
Therefore, if your entitled to twenty one (21) days leave a year, if you have worked for 4 months, your accumulated leave days are seven(7) days.
However, suppose that your employer sent you on compulsory leave due to the Covid-19 pandemic and you did not work for two(2) months, are you still entitled to leave?
In the case of Union of National Research and Allied Institute Staff of Kenya (UNRISK) v Kenya Industrial Research and Development Institute (KIRDI) [2018] eKLR Hon. Lady Justice Maureen Onyango Held:
“The Regulation of Wages and Conditions of Employment (General) Order provides for working hours which are the only hours that an employee is paid a salary for. The Act is clear that when an employee works outside the working hours (overtime) or on any public holiday or rest day, the employee is paid overtime for the hours worked only. This means that the employer is not concerned with any hours when an employee is not supposed to be at work.
The same argument applies with leave. An employee is not on leave on a rest day or on a public holiday. He is only on leave during the period when he is supposed to be at work. That is the period the employer pays for when paying in lieu of leave. For these reasons, 30 days leave means just that.”
The law therefore seems to suggest that if your employer sends you on compulsory leave due to the pandemic, you are not supposed to be at work. Therefore, the law applicable is that you are entitled to your annual leave under section 28. However, in the instance that you agree with your employer that the compulsory/indefinite leave will include the annual leave, then you will not be entitled to annual leave.
Note that it is imporant to follow the correct procedure in handling employment matters.
It is plausible is to conclude that the law provides for the measures that can be taken by employers and their employees to handle the economic situation brought by Coronavirus.
The writer is an Associate at Lutta and Company Advocates.
Lutta & Company Advocates is a Kenyan corporate and commercial law firm anchored on the tenets of integrity, excellence, and transparency.