The Employment Act, 2007 is one of the legislation in Kenya that regulates working conditions, and Employment. This Act is primarily founded on Article 94(5) of the Constitution of Kenya. Article 95 (5) vests legislative authority in Parliament to make laws.

Legal Foundation and Basis of the Employment Act, 2007

The basis of the Act is founded as:
1. Constitution of Kenya (2010)
The Act is aligned with the Constitution:
• Article 41
This Article guarantees labour rights. The rights granted include fair remuneration. They also include reasonable working conditions. Additionally, individuals have the right to form and join trade unions. They also have the right to go on strike.

• Article 2(6)
The Article recognizes international treaties and conventions ratified by Kenya as part of the law. This gives effect to international labour standards.

• Chapter Four (Bill of Rights)
The Chapter outlines rights to dignity and equality. It upholds freedom from discrimination. It also ensures fair administrative action. These rights support labour protections.

2. Parliamentary Authority

The Act was enacted under the statutory powers granted by the Constitution of Kenya (1969). These powers were retained under the Constitution of Kenya, 2010. The powers give  Parliament the role of enacting laws for the governance of employment and labour relations.

3. International Labour Organization (ILO) Conventions

Kenya is a member of the ILO and has ratified several key conventions. They  include:
• ILO Convention No. 87 which deals with Freedom of Association
• ILO Convention No. 98 that deals with the Right to Organize and Collective Bargaining.
• ILO Convention No. 100 speaks to Equal Remuneration
• ILO Convention No. 111 discourages  discrimination in employment

The Employment Act incorporates many of these principles to conform with international labour standards.

4. Legislative History
The Employment Act, 2007 repealed the Employment Act, Cap 226. This was a pre-independence legislation that needed to be repealed to conform to current realities. It was part of a broader labour reform that also introduced together with:
• Labour Relations Act, 2007
• Occupational Safety and Health Act, 2007
• Labour Institutions Act, 2007
• Work Injury Benefits Act, 2007

Key areas in the Employment Act, 2007 Kenya.

The Employment Act, 2007 outlines the rights, responsibilities, and obligations of both employers and employees in Kenya. The key areas that affect both employees and employers are:

1. Contracts of Service (Part II)
The Act stipulates that:
• Written contracts are required for employment exceeding 3 months.
• The contracts must state terms like wages, working hours, leave, probation, etc.
• The Act Imposes a duty to  employers to provide a contract within 2 months.

2. Employment Records (Section 10 & 74).
The Act requires employers to:
• ,Keep detailed employment records on wages, hours of work, leave, contracts, etc.
• These records are essential for resolving disputes or inspections by labour officers.

3. Rights and duties in Employment (Part III)
The Act reinforces on:
• Non-discrimination based on race, gender, religion, etc.
• Equal pay for equal work.
• Right to privacy and human dignity at the workplace.
• Employer to provide a safe and healthy working environment.

4. Wages and Salaries (Part IV)
Employers:
• Required to ensure timely payment of wages, either daily, weekly, or monthly.
• Prohibited from illegal deductions and wage discrimination.
• Must issue itemised payslips.

5. Working Hours, Rest and Overtime (Part V).
The Act stipulates:
• Normal working hours are 52 hours per week outside Nairobi. They are 45 hours within Nairobi, unless specified otherwise.
• Overtime pay be made if an employee works beyond normal hours.
• At least one rest day per week.

6. Leave and Holidays (Part VI).
The states that:
• Annual leave to have a minimum of 21 working days after 12 months of service.
• Sick leave of up to 30 days fully paid, followed by 15 half-pay days.
• Maternity leave of minimum 3 months fully paid.
• Paternity leave of atleast 2 weeks.
• Public holidays are recognized and must be paid if worked.

7. Termination and Dismissal (Part VII).
The Act recommends that termination and dismissal:
• Must be for a valid reason, and fair procedure followed (Section 41).
• Requires notice period or payment in lieu of notice.
• Unfair dismissal may lead to compensation or reinstatement.
• Summary dismissal is allowed for gross misconduct (Section 44).

8. Redundancy (Section 40)
• Specific procedure must be followed:
• Notice must be given to employee and labour office.
• Fair selection criteria must be used in determination of those to retire.
• Severance pay be made for at least 15 days’ pay per year of service.

9. Complaint and Dispute Resolution (Section 87)
• Employees can  file complaints to labour officers or courts.
• Labour officers can inspect workplaces and recommend remedies.

10. Employment of Children and Young Persons (Part VIII)

• Minimum age for employment is placed at 13 years for light work. It is 16 years for regular work. Individuals aged 18 years must not be subjected to hazardous work.
• Strict penalties have been declared for child labour and exploitation.

For Employees
The Act:
• Safeguards rights to fair pay, safe conditions, leave, and protection from unfair dismissal.
• Gives them a mechanisms to seek redress in case of abuse.

For Employers
The Act:
• Provides a legal framework for managing workers.
• Outlines the limits of authority and protects against frivolous claims if procedures are followed.

Summary
The Employment Act, 2007 derives its legal foundation from:
• Constitutional authority (Article 94 and Article 41)
• Kenya’s legislative process through Parliament
• International Labour Standards (ILO Conventions)
• Need for modernization and harmonization of labour laws in Kenya

Are you planning to be an employer or employee in Kenya..? Understand the Law!