The Covid-19 pandemic has created unparalleled levels of uncertainty, anxiety and instability in the world and in almost all sectors of the world economy. Employment is one of these sectors that have taken quite a beating. Businesses the world over are now having to walk a tight rope with an aim of striking a delicate balance between keeping the business afloat in the face of almost insurmountable financial challenges and keeping the human resource component intact.

To weather the storm, the following measures are available to the employer to mitigate the effects of the pandemic:

  1. Annual Leave

The Employment Act {S. 28(1)} provides that an employee shall be entitled to not less than 21 days of leave with full pay after every 12 consecutive months of service with his employer.

This raises the question of whether the employer is able to compel the employee to take their annual leave and whether the employer is able to pay the employee the full remuneration while on annual leave. As long as the same has been discussed between the employer and the employee and the employee given his/her consent, then the same can be effected.

2. Unpaid Leave

As our statutes do not provide for it, we can fall back on the employment contract or HR and employment policies of the entity if they so provide.

Similarly, the question here is whether the employer is able to compel the employee to take unpaid leave where it is not provided for in the employment contract or in HR/employment policies of the business entity. Consultation with the employee will be required beforehand as well as written consent of the employee before the same can be effected. The Employment Act {S.10(5)} provides for consultation with the employee, revision of the contract of employment to reflect the change and informing the employee of the change in writing.

3. Sick Leave

The Employment Act (S.30) provides that an employee shall be entitled to sick leave of not less than 7 days with full pay and thereafter sick leave of 7 days with half pay in each period of 12 consecutive months of service. The Regulation of Wages (General) Order provides for a maximum of 30 days sick leave with full pay and thereafter a maximum of 15 days sick leave on half pay in each period of 12 consecutive months of service. It goes without say that the Courts will lean towards the Order’s provisions over those of the Act as they are more favourable towards the employee.

Therefore, if an employee is to be afflicted with the Covid-19 disease, they are entitled to sick leave in line with the fore-going or other entity policies favourable to them where their employment contracts are silent on sick leave.

4. Remuneration Cuts

This has been hailed as the more humane option in terms of financial impact on the employee in mitigating the effects of the pandemic on businesses. In the majority of situations, the cuts are varied for each employee and based on the grade of employment. In the minority of cases, the cuts are voluntary after consultation with the employee.

As with any change to the terms of the employment contract, the changes can only be effected with consultation with the employee, consent of the employee, revision of the contract of employment to reflect the change and informing the employee of the change in writing.

5. Reduction of working hours, working in shifts and working from home

These 3 are measures available to an employer to reduce the number of employees in the work place. These measures are in line with Government directives on social distancing and allow for the effective enforcement of the curfew orders also in place.

However, these measures do not necessarily call for reduction in remuneration and if the employer intends to apply any salary cuts, then the same can only be effected upon consultation and consent of the employee.

6. Redundancy

If the circumstances become untenable, then the employer may have this option open as a measure of last resort. However, this option requires serious consideration and of greatest priority being financial consideration, as the procedures for declaring redundancy require a mandatory notice of intention to terminate employment on this ground, consultation with the employee and payment of all the dues owed to the employee before such termination. In these difficult financial times, it goes without say that this might not be a measure available to most employers noting that all dues owed to employees should be paid prior to termination of employment on this ground.

7. Close Shop

The final option available is for the entity to declare insolvency under the Insolvency Act. This is a tenable option if the financial situation of the entity has reached a point of no return and the entity is unable to meet its financial obligations to its employees. For termination of employees under the Insolvency Act, the employer must prove that the reasons for termination are fair and valid.

On the flip side, the employee is usually the one in a disadvantaged position. We outline below the rights that accrue to an employee arising out of the employment relationship and the remedies that they may fall back on in the event of infringement of those rights in this period of the pandemic:

  1. Fair and competitive remunerations and/or maintenance of their employment terms

Article 41 of the Constitution of Kenya provides that every person has the right to fair labour practices which include fair remuneration. Without fair and competitive remuneration, an employee cannot meet their basic needs and maintain a decent lifestyle.

In addition to fair remuneration, the employee is entitled to maintenance of the terms of their employment contract. Any variation to the terms requires consultation with the employee, consent of the employee to this variation and express written communication of this variation to the employee. Therefore, any purported salary cuts or changes to any fundamental terms of the employment contract will need to follow this procedure.

2. Reasonable working conditions

Again, Article 41 of the Constitution of Kenya provides that every person has the right to fair labour practices which include reasonable working conditions. Reasonable working conditions involve ensuring the safety, health and well being of the employees by maintaining conditions that are safe and without risk to the health of the employees while they are in the work place and while they are engaged in work. These conditions may include provision of running water, a first aid kit, sanitizers and masks (arising out of the pandemic), medicines for small ailments and even safety gear and equipment depending on the type of work or the work environment the employee is in.

The Occupational Safety and Health Act (S.13 ) places a duty of care on the employee to ensure maintenance of his/her own safety and health and that of others who may be affected by his acts or ommissions by ensuring that he obliges, adheres to and co-operates with the employer in the health and safety measures that the employer has put in place. It is therefore not just the employer’s obligation but the employee’s too.

3. Sick and compassionate leave

As had earlier been outlined, the Employment Act (S.30) provides that an employee shall be entitled to sick leave of not less than 7 days with full pay and thereafter sick leave of 7 days with half pay in each period of 12 consecutive months of service. The Regulation of Wages (General) Order provides for a maximum of 30 days sick leave with full pay and thereafter a maximum of 15 days sick leave on half pay in each period of 12 consecutive months of service. It goes without say that the Courts will lean towards the Order’s provisions over those of the Act as they are more favourable towards the employee.

Parties to the employment contract are at liberty to seek higher standards when entering into their contracts as the fore-going are the minimum standards provided by the law.

4. Due process on redundancy termination

Noting the adverse effects of the pandemic on the country’s economy, employers might be forced to render some of their employees redundant. The Employment Act (S. 40) outlines the procedures to be observed when declaring redundancy including the notice, the form and duration of the notice and the dues to be paid to the employee.

If an employee is of the opinion that their termination was unfair, they are entitled to a initiate a claim of unfair termination.

In conclusion, due to the situation that our economy is currently in, businesses are finding themselves in very precarious situations when it comes to balancing on the tight rope of staying a float and managing their staff. If as a result of this balancing act, some change occurs that necessitates variation in the terms of the employment contracts, the employee MUST consent to such variation. Terms cannot be changed unilaterally. The employee therefore has the following options:

  • Agree to the variation expressly in writing or impliedly by his conduct of continuing to work with the new terms in effect without protest;
  • Refuse the new terms and await the employer’s action;
  • Resign and initiate an action against the employer for constructive dismissal;
  • Stand and sue i.e continue working under protest and seek damages.
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