Most firms in Kenya make employment law mistakes, including failure to provide written contracts, relying on short offer letters or outdated templates, failing to attach job descriptions in employment contracts, drafting incomplete or ambiguous contracts, leaving room for courts to presume the existence of an employment relationship between an employer and employee.
A report prepared by Cliffe Decker Hofmeyr (CDH) law firm shows that employers in Kenya have been breaching the basic requirements like “early employment documentation”, indicating teething problems in employment laws.
CDH says that courts don’t ask, “Was the employee wrong?” but “Did the employer do everything right?”
“Sections 9 and 10 of the Employment Act require written contracts and employment particulars for all employees with service exceeding three months. These particulars must include: – employee and employer details (name, age, address, sex, etc; job description, commencement date, contract type, and duration; place of work, working hours; remuneration, benefits, and intervals of payment; Continuous employment period; leave entitlements, sick pay, pensions; and collective agreements and overseas assignment details,” reads a CDH report on mistakes on workplace disputes.
Redundancy verses legal framework
Redundancy, which is defined under the Employment Act as “the loss of employment, occupation, job or career by involuntary means through no fault of an employee, involving termination of employment at the initiative of the employer, where the services of an employee are superfluous and the practices commonly known as abolition of office, job or occupation and loss of employment”, relates to the role, not the individual. The position is being eliminated, not the employee being targeted.
Selection criteria
Pursuant to section 40(1)(c), an employer must satisfy certain minimum conditions before terminating an employee on account of redundancy. In selecting the employees to be declared redundant, the employer ought to have due regard to seniority in time and to the skill, ability and reliability of each employee of the particular class of employees affected by the redundancy.
Judicial interpretation
Redundancy under the Employment Act, particularly Section 40, is not treated by the courts as a purely managerial prerogative. The courts consistently interrogate whether the employer has strictly complied with the statutory procedure, and failure to do so will render the redundancy procedurally unfair.
Practical compliance framework
To minimise litigation risk, CDH says, employers should document the business rationale for restructuring, clearly define affected positions, not individuals, apply objective and consistent selection criteria and maintain documentation to demonstrate that it considered the selection criteria.
Additionally, meaningful consultations with employees and unions ought to be conducted. This entails issuing statutory notices and termination letters, paying up all statutory entitlements accurately, and maintaining a clear paper trail
What employers should do differently
Experts say that before any disciplinary termination, HR or management should be able to answer questions like: Were expectations clear? Was support given? Was improvement measured?
According to lawyer Njeri Wagacha, who specialized in industrials, manufacturing and trade sector corporate and commercial law, it is important for companies to identify recurring pitfalls in employment law – by so doing, they will be able to put in place hands-on strategies and actionable steps to help address pertinent issues while strengthening the work compliance framework.
“Make sure that when you are advertising the role, the job description is very clear so that everyone knows what their expectations are… we must be clear from the employment contract on how the remuneration will be done, so the employment contract needs to be clear,” Ms Wagacha says.
She further explains that based on valuable lessons learned from Employment Court Decisions, current job description, key performance indicators, targets, timelines and reporting lines should all be clear and documented.
“Show coaching, feedback meetings, tools, supervision and any reasonable support required for the role… Use a realistic PIP (Performance Improvement Plan) period, record progress, and hold a final performance hearing before termination,” she explains.
