The Employment (Amendment) Act 2022 (the Amendment Act), which amends section 9 of the Employment Act 2007 (General provisions of a contract of service), was one of five (5) legislations that H.E President Uhuru Kenyatta signed into law on April 4, 2022.
Section 9 of the Employment Act of 2007 (the “Employment Act”), which establishes requirements for hiring employees with regard to the general terms of a service contract, is amended by the Amendment Act. The change became effective on April 22, 2022.
This amendment was made necessary by the numerous requests made to job applicants by companies asking them to obtain and submit clearance or compliance certificate(s) prior to being interviewed. The cost of obtaining the clearance certificates and the length of time required for administrative processing would dissuade candidates from applying for jobs.
The said clearance or compliance certificate (s) include but are not limited to:
- A certificate of good conduct from the Director of Criminal Investigations;
- A certificate from the Ethics and Anti-corruption Commission;
- A certificate from the Kenya Revenue Authority;
- A certificate from the Credit Reference Bureau; and
- A certificate from the Higher Education Loans Board.
In summary, the Amendment Act provides that:
- It will not be necessary for an employee to submit any clearance or compliance certificates during the hiring process unless the prospective employer wants to enter into a service agreement with the candidate.
- In order to ensure that the requirements of Chapter Six of the Kenyan Constitution are met, an employer who has decided to hire an employee through a written contract of service is free to ask the employee for a mandatory clearance or compliance certificate (s) from the appropriate authorities or entities.
- Particularly when it comes to candidates for government offices, clearance or compliance certificates must be made available as needed during the hiring or approval process.
- The authorities or entities that issue clearance or compliance certificate(s) have been instructed not to charge a fee for the stated clearance or compliance certificate(s) in order to preserve potential employees from ongoing fees during their job application process (s).
- Despite the amendments, if an employee fails to present a clearance or compliance certificate, the employer may choose to revoke the offer of a contract of employment (s).
- Additionally, within seven days of receiving an application, the entities must either provide the applicant a clearance or compliance certificate (s) or reject the application.
Effects of the Amendments.
- No fee shall be charged by any authority that provides clearance and/or compliance certificates. Because this service contributed significantly to these entities’ revenue, the Treasury (and, by extension, the taxpayer) will be required to fill the revenue gap by making adequate budgetary provisions from the consolidated fund.
- If the prospective employee is successful in the interview process and an offer of employment is made, the employer may require him/her to provide the clearance certificates, failing which the offer of employment may be withdrawn at the employer’s discretion.
- A significant impediment to the recruitment process has been removed. Unemployed youth will now be able to apply for jobs without fear of financial or administrative repercussions. Employers will also have a larger pool of applicants from which to choose, improving the quality of their human resource pool.
- The authorities have seven (7) days to respond to a request to provide a clearance or compliance certificate. This is easier said than done, and there appears to be no way to enforce this requirement.
This is undoubtedly an amendment that will significantly alter the nature of labor relations, requiring employers to de-risk potential working policies that may violate the right to disconnect. Employers must therefore re-examine employee contracts to ensure that they are not subject to this provision, or are otherwise prepared to implement policies that would facilitate this working dynamic.
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