Safeguarding fair labour practices to weather the COVID-19 Pandemic

Jane Akinyi Onyango, an advocate of the High Court of Kenya.

Confirmation of Kenya’s first COVID 19 case in March, this year, marked the beginning of the economy’s downward trend. What followed were stringent measures by the government to curb the spread of the virus. Notably, the stay at home order introduced a new paradigm on the employee-employer relationship.

Other notable measures include the 7 pm to 5 am curfew and lockdown of five counties namely Nairobi Metropolitan, Mombasa, Kwale, Kilifi, and Mandera. While the measures were meant to curb the spread of the disease, it also affected the employer-employee relationship.

It is for this reason that several initiatives have been undertaken by various Government agencies such as the Senate and the Ministry of Labor geared towards salvaging an anticipated strain in employer-employee relations. Senate, for instance, has drafted a Bill, The Pandemic response Management Bill, that outlines several measures to be taken to cushion those affected by the COVID-19 pandemic. 

Once enacted to law, it seeks to shield employees from termination of their employment contracts as a result of the pandemic. The Ministry of labor too has outlined key measures mainly bordering on basic hygiene and safety at the workplace to minimise the spread of the disease.  

The pandemic has led to uncertainty in employment circles. Employers are at a crossroads trying to get to terms regarding the business continuity and well-being of its employees. The financial challenges posed by the pandemic has led to businesses taking drastic measures against its employees including termination of employment.

How then should employers balance their interest’s vis-a-vis that of its employees as enshrined under Article 41 of the constitution of Kenya 2010? Employers can, therefore, employ a raft of measures to balance between being humane to their employees to assist them to go through this pandemic.

Employers must consider the unforeseeably and the effects the pandemic has on their employees. This should enable them to take necessary measures to mitigate damages likely to be caused as a result of the pandemic. Employees, on the other hand, should not use it as an excuse to underperform in their duties.

When that time to take the painful decision of termination, then employers should wear the humane mask to help employees through this transition. Most importantly, employers should consider offering psychosocial support such as counseling to affected employees.

Also, employers are required to consult their employees when they need to revise work contracts in compliance with the employment Act No. 11 of 2007. Whenever employees are involved in the decision-making process, the risk of employer-employee disputes are minimized, employees’ claims against the employer is also minimized and the result is a better and more informed decision making and an employee well prepared to cope with the change.

Consultation equally invites the employee to share their concerns and have them addressed, to provide solutions to challenges facing the business.

Given the above employers can opt for working from home arrangements and introducing shifts. Other measures include a reduction in working hours hence pegging the employee’s output with the salary paid.

During the pendency of the pandemic, a voluntary pay-cut ensures job security for the employee and presents the employer with an opportunity to manage their financial obligations with ease. The pay–cut should be based on the remuneration policies of the organization.

Employers can also consider paying salaries based on piece work with the aim of at least meeting the minimum wage requirement. Besides, employees can agree to forfeit benefits that have economic implications on the business such as entertainment allowance, commuter/travel allowance, communication, and responsibility allowance. Parties can mutually agree on the period of the suspension or forfeiture and revert to the initial arrangement once things normalize.

Employees can also be encouraged to apply for paid annual leave for a period not less than 21 working days for every twelve consecutive months of service as per Section 28 of the Employment Act. Depending on the company, employers facing termination can opt for unpaid leave. Kenyan labor laws do not provide for unpaid leave. However, both parties can agree, to grant unpaid leave as opposed to the termination. Unpaid leave guarantees an employee job security and are at liberty to return to their positions once normalcy resumes. This would, therefore, mean a leave of absence without pay for the duration of the pandemic.

Vulnerable employees or those with preexisting conditions can also apply for Sick leave. The law under Section 30 of the Employment Act provides for sick leave of not less than seven (7) days with full pay and thereafter seven (7) days with half pay.

The Regulation of Wages (General) Order provides that an employee is entitled to a maximum of thirty (30) days sick leave with full pay and thereafter to a maximum of fifteen (15) days sick leave with half pay in each period on twelve (12) months consecutive service.

In a scenario where an employee is infected with the virus, the employer should be able to grant unpaid sick leave beyond the statutory provisions, considering the strict ministry of health guidelines on prevention and treatment of the virus specifically the duration of isolation and future follow-ups of the patient. The employer should develop policies to address the stigma associated with the virus for employees who have recovered and are required to return to work.
Regular counseling sessions and sensitisation are some of the mitigating measures that can help an employee settle very fast and be productive.

Where an employer is faced with no option but declares its employees redundant, strict adherence with the law specifically the provisions of section 40 of the Employment Act should be observed. This is because the loss of employment is involuntary and not the employee’s fault. Termination, on the other hand, is an employer’s initiative.
In declaring an employee redundant, an employer must notify the employee’s union in writing for unionisable employees. For non-union employees, a personal notice in writing and a further notice to the local labor officer is required. The notices should not be less than a month before the date of the intended termination on account of redundancy. The selection of employees to be declared redundant should have due regard to the seniority, skill, ability, and reliability of each employee affected by the redundancy. Where there exists a collective bargaining agreement between an employer and a trade union setting out the terminal benefits payable upon redundancy, non-union employees should not be placed at a disadvantage
Where leave is due to an employee declared redundant, the employer should ensure that the leave is paid off in cash. It should be noted that the leave period and notice period should run its cause as per the employment Act. Employees should not be coerced to combine the notice period with the pending leave days. The employer should pay the employee declared redundant not less than one months’ notice or one month’s salary instead of notice. Severance pay of fifteen days’ pay for each completed year of service should be paid. Employers are advised to insure their employees against the risk of redundancy through an unemployment insurance scheme. Declaring employees redundant should be a measure of last resort. Even with the pandemic, employers are required to work and make decisions within the law. Tough time’s calls for tough measures, employers and employees need to work together to weather through the storm, do not lay off a great employee over a passing storm. Focus on the long term and not the short term, invest in a crisis management strategy and find a balance. This too shall pass.

The writer is an advocate of the High Court of Kenya.