The Employment (Amendment) Bill, 2021 (The “Bill”) (Senate Bills No. 54 Of 2021)

The Bill seeks to amend the Employment Act of 2007 (the “Act”) to introduce and provide for the right to disconnect; the right of employees to have their personal time and privacy respected by introducing a new Section 27A.

A. Background

For context, Section 27 of the Act provides for the terms of hours or engagement in work under the employer-employee relationship. It stipulates that an employer shall regulate the working hours of each employee in accordance with the provisions of the Act and any other written law.

It is noteworthy to state that Section 27 as currently drafted allows for regulation of working hours under “any other written law”. For context, this leaves room for operation of laws such as the Labour Relations Act, 2007 where Essential Service Providers’ rights in labour relations including time and industrial action are limited. Further to this, it is important to add that under the Labour Relations Act, 2007, the Cabinet Secretary in charge may from time to time declare any other service to form part of essential services.

The Act at Section 27(2) further provides that an employee shall be entitled to at least one rest day in every period of seven days as a bare minimum.¹

B. The Bill 

With this background thus, the following are the key highlights of the Bill: –

1. The Bill states that an employee has the right to disconnect (entitlement not to be contacted) from their employer and as such an employer may only contact an employee during out of work hours if such contact is necessary for the purpose of addressing an emergency;
2. To achieve this, the Bill requires employers to put in place policy guidelines that stipulate the circumstances forming emergencies that warrant contact beyond the working hours, use of electronic devices to contact the employee beyond working hours and general exclusion to the right to disconnect. The Bill requires that the policy shall be co-developed with the employees in the event an employer has over ten (10) employees or in consultation with a relevant trade union;
3. The Bill intends to introduce the right, terms, and nature of compensation for employees who work out of work hours and an express provision that an employee shall not be reprimanded, punished, or subjected to disciplinary action if the employee disregards a work-related communication during out of work hours;
4. The Bill also stipulates that where the employer and employees do not have mutually stipulated working hours, the discretion to elect whether or not to respond to contact beyond working hours shall rest with the employee and such employee shall be entitled to compensation; and
5. The Bill introduces penalties for contravention of the proposed amendment. This is, upon conviction for contravention of the proposed amendment, a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding one year or to both.

C. Implication 

1. The Bill defined “out of work hours” to means hours other than the hours of work agreed upon between an employer and an employee in the contract of employment. Therefore, employers and employees are at liberty to define hours of engagement as and how they please noting to comply with the mandatory requirement of at least one (1) rest day a week.2
2. The proposed amendments shall not apply to the provision of essential service.
3. The right to disconnect shall be subject to Section 10 of the Employment Act. That is to say, the proposed amendment is subject to the terms agreed upon by the employer and employee in the written contract for service which among other things, shall state the hours of work and remuneration scale and method.
4. The entitlement to annual leave, including public holidays, and accrued holiday pay, incapacity to work due to sickness or injury, including any provision for sick pay shall still remain as in the Employment Act.
5. The practice shall still remain that upon any changes to the terms of the contract as to working hours, the employer shall, in consultation with the employee, revise the contract to reflect the change and notify the employee of the change in writing.

D. Conclusion/Status 

The Bill (being SENATE BILLS NO. 54 OF 2021) was published on the 8^th of October 2021 and matured on 21^st October 2021. Therefrom it was table for the 1^st Reading on the 2^nd of December and was due for a second reading on the 31^st of December 2021 but was referred back, at the 1^st reading, to the Labour and Social Welfare Committee for a Committee Report to be generated and tabled before the House for consideration.

The Committee Report was tabled on the 24^th of March 2022. The Bill came up for 2^nd Reading before the Senate on the 30^th of March 2022, 31^st of March 2022, 6^th of April 2022 and 7^th of April 2022 but voting was deferred to a later dated before the Bill could be forwarded to the National Assembly.

We shall continue following up with the process and update accordingly.