Employment Act Kenya

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Kenya
1. Service contract
An employer who is a party to a written contract of service shall be responsible for causing the contract to be drawn up stating particulars of employment and that the contract is consented to by the employee. For the purpose of signifying his consent to a written contract of service an employee may sign his name, or imprint an impression of his thumb or one of his fingers in the presence of a person other than his employer. Where an employee is illiterate or cannot understand the language in which the contract is written, or the provisions of the contract of service, the employer shall have the contract explained to the employee in a language that the employee understands.

A written contract of service shall state particulars of employment which may be given in instalments and shall be given not later than two months after the beginning of the employment. A written contract of service shall state the name, age, permanent address and sex of the employee; the name of the employer; the job description of the employment; the date of commencement of the employment; the form and duration of the contract; the place of work; the hours of work; the remuneration, scale or rate of remuneration, the method of calculating that remuneration and details of any other benefits; the intervals at which remuneration is paid; and the date on which the employee’s period of continuous employment began, taking into account any employment with a previous employer which counts towards that period; and any other prescribed matter.

2. Annual Leave and Holidays

a) Annual Leave
An employee shall be entitled after every twelve consecutive months of service with his employer to not less than twenty-one working days of leave with full pay. where employment is terminated after the completion of two or more consecutive months of service during any twelve months’ leave-earning period, he is entitled to not less than one and three-quarter days of leave with full pay, in respect of each completed month of service in that period, to be taken consecutively. An employer may, with the consent of the employee divide the minimum annual leave entitlement into different parts to be taken at different intervals. Unless otherwise provided in an agreement between an employee and an employer or in a collective agreement, and on condition that the length of service of an employee during any leave-earning period entitles the employee to such a period, the leave shall consist of at least two uninterrupted working weeks. The uninterrupted part of the annual leave with pay shall be granted and taken during the twelve consecutive months of service and the remainder of the annual leave with pay shall be taken not later than eighteen months from the end of the leave earning period. Where in a contract of service an employee is entitled to leave days in excess of the minimum specified,the employer and the employee may agree on how to utilize the leave days.
b) Maternity leave
A female employee shall be entitled to three months maternity leave with full pay. On expiry of a female employee’s maternity leave, the female employee shall have the right to return to the job which she held immediately prior to her maternity leave or to a reasonably suitable job on terms and conditions not less favourable than those which would have applied had she not been on maternity leave. Where the maternity leave has been extended with the consent of the employer; or immediately on expiry of maternity leave before resuming her duties a female employee proceeds on sick leave or with the consent of the employer on annual leave; compassionate leave; or any other leave, the three months maternity shall be deemed to expire on the last day of such extended leave. A female employee shall only be entitled to the rights mentioned if she gives not less than seven days notice in advance or a shorter period as may be reasonable in the circumstances of her intention to proceed on maternity leave on a specific date and to return to work thereafter. The notice referred to shall be in writing. A female employee who seeks to exercise any of the rights mentioned in this section shall, if required by the employer, produce a certificate as to her medical condition from a qualified medical practitioner or midwife. No female employee shall forfeit her annual leave entitlement on account of having taken her maternity leave.
c) Paternity leave
A male employee shall be entitled to two weeks paternity leave with full pay.

d) Sick leave
After 2 months of continuous service with an employer, an employee shall be entitled to a maximum of 30 days sick leave with full pay and thereafter to a maximum of 15 days sick leave with half pay in each period of 12 consecutive months of service. An employee shall 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 authorised by him in writing and acting on his behalf. An employee shall not be eligible for sick leave in respect of any incapacity due to gross neglect on his part.

3. Compensation

a) Work Hours
An employer shall regulate the working hours of each employee but shall in no event provide maximum hours exceeding 48 hours spread over 6 days in one week
b) Overtime
For time worked in excess of the normal number of hours per week, overtime shall be paid at one and one-half times the normal hourly rate;
c) Paid Public Holidays
For time worked on the employees normal rest day or public holiday, overtime will be at twice the normal hourly rate.
d) Disability/work injury benefit
An employee who suffers temporary total disablement due to an accident that incapacitates the employee for three days or longer is entitled to receive a periodical payment equivalent to the employees earnings, subject to the minimum and maximum amounts fixed by the Minister from time to time, after consultation with the Council.
Periodical payments shall be made for as long as the temporary disablement continues, but not for a period that exceeds twelve months.An employee is not entitled to receive a periodical payment during any period in which the employee is receiving full pay, as provided for in the Employment Act, or any other law or contract of service. The periodical payment of an employee who is receiving part payment of remuneration shall be reduced so that the employee does not receive more than the employee would otherwise have.
Compensation for permanent disablement shall be calculated on the basis of ninety six months earnings subject to the minimum and maximum amounts determined by the Minister, after consultation with the Board, and set out in the Third Schedule of the work injury benefits act, 2007
In order to determine compensation, the earnings of an employee is deemed to be the monthly rate at which the employee was being remunerated by the employer at the time of the accident, including the value of any rations or quarters or both supplied by the employer to the date of the accident or report of disease, allowances paid regularly and any overtime payment or other special remuneration of a regular nature or for work ordinarily performed; but excluding- payment for intermittent overtime; payment for non-recurrent occasional services; amounts paid by an employer to an employee to cover any special expenses; ex-gratia payments whether by the employer or any other person.

4. Termination of contract
A notice period or payment in lieu should be granted to the employer in the case where an employee wishes to leave employment. The notice period depends on the type of contract an employee is in (Section 35);

Daily basis contract (Casual employment): No notice period required from either party.
Probation: at least 7 days’ notice period or payment in lieu
Employment based on payment intervals less than 30 days (e.g weekly or fortnightly payment): 15 days’ notice should be served or payment in lieu
Permanent employment with monthly payment intervals: 28-day notice or payment in lieu
Notice of termination goes both ways. If an employer fails to give an employee a notice of termination prior to disengagement, he/she should pay the employee the wages and benefits in accordance with the appropriate notice period.

Except in cases of redundancy and summary dismissal, an employer should clearly explain to an employee the reason for their termination, and in a language the employee can understand. The notice too should be written by the employer in a language easily understood by the employee.

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