“Employment relationships are not commercial contracts, and the Court must strive to achieve the delicate balance between the need for our national economic development, and the protection of the dignity and economic well-being of an individual employee.”
- Rashid Odhiambo Allogoh & 245 others v Haco Industries Limited  eKLR.
While employers have the managerial discretion to exercise various strategies to ensure sustainability of their businesses in the wake of the COVID-19 pandemic as seen in our article published on 23rd March 2020, it is imperative that the rights of the employee as set out under Article 41 of the Constitution as well as other enabling laws are upheld.
This brief addresses the rights that accrue to employees under the Employment Act, The Public Health Act, the Work Injury Benefits Act and the Occupational Safety and Health Act and the remedies available to an employee in the event that the same are infringed.
Employee Right to due process on termination on account of redundancy
Redundancy concerns the dismissal of an employee on the grounds that the employer no longer requires the employee for the work for which they were hired. Noting that the COVID-19 pandemic has had an adverse effect on the economy of the country and the world at large, employers might be forced to invoke their managerial discretion to terminate employees’ contracts of service on account of redundancy.
Section 40 of the Employment Act sets out the conditions that an employer has to fulfill when terminating a contract of service on redundancy. In summary, the employer has to first give notice of the intended termination to the 1) trade union in the event that an employee is a member of a trade union; 2) the labour officer in charge of the area where the employee is employed and 3) the employee. Such notice ought to be in writing and has to be issued not less than a month prior to the date of the intended date of termination.
The employer is also under an obligation to select the employees to be declared redundant with due regard to the seniority in time, the skill, ability and reliability of each employee of the particular class of employees affected by the redundancy.
Upon termination, the employee will be entitled to several benefits which include; encashment of leave days, one month’s pay in lieu of notice (if at all) and severance pay at the rate of not less than fifteen days’ pay for each completed year of service. The employer shall then issue the employee with a certificate of service under Section 51 of the Act. However, where the employment contract or a collective bargaining agreement provide for better terms on termination, the same ought to apply.
Based on the Court’s decision in Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others  eKLR, redundancy is a legitimate ground for terminating a contract of employment provided there is a valid and fair reason based on operational requirements of the employer and the termination is in accordance with a fair procedure. As such, where the employee is convinced that the termination of their employment was unfairly done, a claim of unfair termination can be brought before the Employment and Labour Relations Court.
Right to Reasonable working conditions
According to the International Labour Organization, working conditions involve a wide range of issues which include the physical conditions as well as the mental demands within the workplace.
The Constitution of Kenya under Article 41 guarantees the right to reasonable working conditions to every person. In keeping with this right, the employer has a duty to inter alia provide employees with provisions such as water, to have medicine available at work and also ensure that a first aid kit is readily available at the place of work at all times.
Reasonable working conditions also involve ensuring the safety, health and welfare of workers by maintaining conditions that are safe and without risks to the health of the employees as envisaged by the Occupational Safety and Health Act.
The aspect of a safe working environment was explained in the case of Sokoro Saw Mills Limited v Bernard Muthimbi Njenga Nakuru High Court Civil Appeal No. 38 of 1995 where the court stated that the duty of the employer to provide a safe place of work to the employee involves not merely warning the employee against unusual dangers known to them but also making the place of employment as safe as the exercise of reasonable skill and care would permit.
As such, an employer should implement the State’s mitigating measures to protect the health of the employees and the safety of the workplace in line with Section 36 of the Public Health Act. These measures include providing a sufficient supply of water for the use of his employees, providing medicine at the place of work and complying with sanitation and lockdown procedures to reduce risks.
Where the employer fails to provide reasonable working conditions, the employee can bring a claim that their rights and guarantee for fair labour practices and reasonable working under Article 41 have been violated by the employer.
However, section 13 of the Occupational Safety and Health Act, 2007 also places a duty on the employee to ensure their own safety and health and that of other persons who may be affected by their acts or omissions. It Is therefore important that in addition to employers putting in place safety measures in line with the Act, that employees also safeguard themselves to ensure their own safety and that of their colleagues.
Entitlement to Sick leave & Compassionate leave
Where an employee tests positive for the COVID-19 or is placed under isolation in line with the directives from the Ministry of Health, they will be entitled to sick leave. Pursuant to Section 30 (1) of the Employment Act, after two consecutive months of service, an employee is entitled to sick leave of not less than seven days with full pay and thereafter to sick leave of seven days with half pay in each period of the twelve consecutive months of service.
Under paragraph 12 of the Regulation of Wages (General) Order, at maximum an employee is entitled to thirty days of sick leave and thereafter to a maximum of fifteen days sick leave with half pay in each period of twelve months continuous service. Such an employee shall however not be entitled to such payment unless he produces to the employer a certificate of incapacity covering the period of sick leave claimed signed by a medical practitioner in charge of a dispensary or medical aid centre, or by a person authorized by him in writing and acting on his behalf.
Based on the Court’s decision in Kenya Plantation and Agricultural Workers Union v Rea Vipingo Plantations Limited & another  eKLR, it is noted that sick employees do not lose their right to equality of opportunity under Section 5 of the Employment Act 2007, and Article 27 of the Constitution, on the basis of their falling sick. The employer has a duty to reasonably accommodate sick employees in keeping with the right of equal opportunity for all persons.
In the event that an employee wishes to take time off work to take care of a sick person due to the pandemic, they can seek compassionate leave. Under Regulation 11 of the Regulation of Wages (General) Order, an employee desirous of taking leave on compassionate grounds shall be granted such leave against their annual leave. In addition, the employee will also be granted five days’ compassionate leave without pay in any one year.
Based on the Courts decision in David Muguna v Board of Management Gibea Jerusalem Academy  eKLR, it is reasonable where upon taking compassionate leave for good cause for the employer to demand the employee to produce proof of such requirement for compassionate leave and hence the need to be away from work.
The law only provides the minimum conditions and terms of employment and parties are allowed to vary the same and hold themselves to a higher standard. Therefore, where the contract of employment or a collective bargaining agreement provide for better terms on sick leave, compassionate leave or any other form of leave such as Force Majeure leave, then the same ought to apply.
Right to fair remuneration and/or maintenance of employment terms
The role of the Constitution and the laws drawn from it is to ensure the protection of individual rights and freedom. The Constitution of Kenya under Article 41 provides for fair labour practices which include fair remuneration. According to Ingrida Mačernytė-Panomariovienė “The Right to Receive Fair Remuneration for Work in the Republic Of Lithuania”, fair remuneration is an important aspect of ensuring the employee’s welfare and means guaranteeing a decent living for the employee.
While the Employment Act of Kenya is silent on the issue of reduction of salaries, Courts have been met with the question on the validity of salary reduction. In the case of Ibrahim Kamasi Amoni v Kenital Solar Limited  eKLR, the Court stated that for a reduction of salary to be valid, an employer ought to obtain the approval of an employee by communicating the reduction to an employee in a letter and causing the letter to be accepted by the employee. This is because salary is a fundamental term of employment whose reduction has negative impact on an employee’s livelihood and should not be done arbitrarily or unilaterally by an employer.
The terms of employment cannot be changed unilaterally, the employer has to obtain consent from the employee before doing so. (DOUGLAS v. Talk America Inc. No. 06-75424, United States Court of Appeals, Ninth Circuit). In that case arising from Covid-19 pandemic, an employer will have to enter into a contract with the employee on reduction of salary or until such a time when the company is able to sustainably pay fair remuneration to the employee.
Compensation for work related injuries and diseases under the Work Injury Benefits Act
The Work Injury Benefits Act, No. 13 of 2007 provides for compensation of employees for work related injuries and diseases contracted in the course of employment. The Act covers all employees under a contract of service and includes an apprentice or indentured learner. Under Section 10 of the Act, an employee who contracts an injury or occupational disease resulting to their disablement or death is entitled to benefits under the Act.
An employer will be liable to pay compensation to an employee injured while at work and while the employee is on conveyance to or from the employee’s place of employment for the purpose of the employee’s employment by means of a vehicle provided by the employer for the purpose of conveying
Based on Rule 6 of the Employment (General) Rules, 2014, an employee’s letter of appointment ought to specify among other things, the employee’s place of work. In the context of the Work Injury Benefits Act, the workplace is a fixed reporting station as envisaged by the Employment Act, 2007.
In light of the pandemic, the fixed work station becomes a risk due to the risk of exposure to the employees in light of the directives given by the Ministry of Health. That means that the workplace must be thought of as a question of public health rather than a place of work injury. The workstation is under the control of the employer which necessitates the employer to take such measures to protect the employees.
Therefore, it would be unfair to hold an employer liable for accidents that happen while working from home; a context purely in control of the employee yet the employer in protecting the employee has to allow that employee to work away from the risk at work.
However, given the dynamic, the employer will be squarely liable if they don’t allow the employee to work from home thus placing the employee at a public health risk.
Therefore, an employee who has been injured or contracted an occupational disease during the course of employment shall claim compensation within twelve months after the date of the accident or death. The Act sets out the minimum and the maximum amount amounts fixed for such compensation.
The Second Schedule of the Act lists the occupational diseases covered by the Act which do not include COVID-19. However, pursuant to section 43 of the Act, the Minister may, on the recommendation of the Council and in consultation with the Director, amend the Second Schedule by notice in the Gazette, in respect of the description of diseases and work.
The change in normal working conditions through the occurrence of a pandemic forces us to rethink how to apply existing laws. The pandemic affords us the room to find new ways to adapt to the changes while upholding human rights. To this end, the pandemic is an opportunity to show greater efficiency despite the challenges. Disasters are a test of our willingness to rise above the adversity that threaten life and limb, home and workplace, employer and employee.
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