The Employment (Amendment) Bill 2021 was gazetted by a Gazette Notice dated 8 October 2021. The Bill is aimed at addressing increased employee burnout and promoting employees’ work life balance.
Specifically, the Bill seeks to amend the Employment Act, 2007 to introduce an employee’s ‘right to disconnect’. This is a workplace concept that is gaining increasing attention, globally, more so following the effect that the covid-19 pandemic has had on labour relations. Portugal introduced a similar rule sometime in November 2021 for all employers with ten (10) or more employees. In Belgium, similar regulations took effect on 1 February 2022, with respect to civil servants.
The Bill defines the right to disconnect as an employee’s right to not be contacted by their employer outside of contractual working hours, except when necessary for the purposes of dealing with a workplace emergency. At this stage, the concept of what constitutes necessary emergency contact has not yet been defined in the Bill.
The Bill places an obligation on the employer to put in place a policy framework outlining the exceptions to the right to disconnect, as well as the circumstances under which the right may be waived. Additionally, the policy must outline the parameters for the use of electronic devices to communicate with an employee outside work hours. If an employer has more than ten (10) employees, the policy is to be developed in consultation with the employees and/or a trade union, where applicable.
The Bill further prescribes that an employee is not obliged to respond to a communication, if contacted outside of work hours, and that if the employee chooses to respond, he/she is to be compensated. The Bill does not, however, stipulate how the compensation is to be calculated. It is important to note that the Bill also states that an employer cannot penalise an employee who chooses not to respond to such an out-of-hours communication.
Essential service providers (as prescribed under section 81 of the Labour Relations Act, 2007) are excluded from the right to disconnect. What is key to note, however, is that the Cabinet Secretary for Internal Security may, from time to time, declare any other service as an essential service.
If the proposed amendments are passed, Kenya will join the growing list of countries legislating on the right to disconnect. For instance, in April 2021, Ireland issued a code of practice to employers that essentially allowed all employees to switch off from work and disengage from work related communication save during the agreed working hours.
This is certainly a Bill that will significantly change the nature of labour relations with the result that employers would be required to de-risk in relation to potential working policies that may flout this right to disconnect. It will therefore be necessary for employers to relook at employee contracts to ensure that they are not caught within this provision, or are otherwise prepared to adjust to policies that would facilitate this working dynamic.
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