Dilemma over proposed law that allows staff to snub their bosses

A global consulting firm opines that employers may be forced to revise their employees’ contracts to capture their stipulated working hours to avoid penalties stipulated in a new bill before Parliament.

Additionally, those who are not paying workers overtime, should consider budgeting for the same in case this bill is enacted into law.

An analysis of the Employment (Amendment) Bill, 2021 by Ernst & Young(EY), a global consulting firm, is of the opinion that for those employees whose contracts do not specify their working hours, their employers may have to include this clause and the agreement between them musty specifically state that they will; be remunerated for additional hours worked.

The analysis dated March 23, 2022, also states that employers having more than 10 employees will also have to formulate a policy with regard to working hours and overtime to ensure compliance with the provisions of the bill.

The bill, presented to the Senate by  Samson Cherargei(Nandi County), is borrowed from what France has where in 2017 the country introduced the legal right to disconnect for certain cadres of workers and mandatory requirement for employers with more than 50 employees to negotiate with unions to define parameters within which this right would be implemented.

Other countries that have since followed suit are Belgium, Italy, and Italy.

According to the bill before the senate, where an employer contacts an employee during the period when there is no mutually agreed out of work hours, the employee is not obliged to respond and if they do then they shall be entitled to compensation.

The bill further stipulates that any person who contravenes this section commits an offence and is liable, on conviction, to a fine not exceeding sh500, 000 or to imprisonment for a term not exceeding one year or both.

The analysis by EY argues that these actions by these nations as well as the changing practices around workplace connectivity as a result of the COVID-19 pandemic sparked conversation in the European Union (EU) Parliament on the need for a directive that would establish the right to disconnect among member states.

It adds that outside the EU, India and Australia have also enacted legislation recognizing and entrenching this right.

EY explains that the intention of the Bill is to enhance the work-life balance of employees in this digital working era and alleviate employee burnout.

“It has been observed that with the onset of remote working, employers have been relying on digital connectivity to communicate with their employees and vice-versa. However, due to the ease of accessibility, the boundary between working hours and private rest is becoming less apparent with some employers expecting employees to handle work-related matters past contractual working hours,” the firm says.

Labour and social protection cabinet secretary Simon Chelugui, while appearing before the respective senate committee raised reservations on the bill arguing that it might lead to disputes in the labour sector.

“The Bill, if adopted, will pose a challenge in fostering harmonious relationships. For instance, employees would be exposed to victimization and mistreatment at work whenever they disconnect,” Chelugui observed as reported by Parliament.

Cherargei, in the bill, notes that the principal object of the Bill is to provide for the right to disconnect in the digital age. The bill also seeks to address increased employee burnout.

“Digital connectivity has also been noted to be slowly eroding leisure time for employees hence affecting their work-life balance. This Bill, therefore, seeks to strike a balance between work and private life to allow digital technology to have a positive effect on workers' quality of life supported by employers,” the bill reads in part.

EY reports that even outside organizational policy, employees have begun to communicate their own way of disconnecting. Some employees have their working hours within their sign off messages and signatures while others encourage colleagues to disconnect by indicating no obligation to provide same day response to emails sent outside working hours.

“Whether or not the Bill is passed, both employers and employees will need to agree on the most suitable arrangement to ensure that there is an optimal balance between work life and personal life such that neither the employee nor the employer is disadvantaged,” reads the EY analysis titled Kenya considers legal right for remote workers to ‘disconnect’ and establish specific working hours.

It adds: “Still to be determined is whether the need to compensate employees for overtime will improve productivity and output as workers will be more motivated.”

While the bill seems noble to employees, especially in today’s gig economy, it does not specify the exact working hours for example 8am to 5pm in many organisations. It leaves this to the supposed agreement that will be between the employer and employee.

As such, employers might still allocate working hours earlier or later than the perceived normal working hours to go around the penalties if the bill becomes law as it is.

“Out of work hours means hours other than the hours of work agreed upon between an employer and an employee in the contract of employment,” the bill reads in part.

This arrangement, however, as EY notes in the analysis, might not be suitable for employees in highly competitive industries and organizations.

EY says when you consider this and the fact that enforcement of the provisions will most likely be achieved through proceedings before an employment court, there is some concern that the Bill will not succeed in achieving its intentions.

"In countries where the right to disconnect has been applied and enforced successfully, it may be argued that the laws followed accepted norms on work and personal life balance," it adds.