Co-authored by Clifford Odhiambo
Contracts of employment were known for many years as “master and servant” contracts. The terminology obviously now has archaic connotations and is no longer found in modern legislation. Simply put, a contract of employment means an agreement whether oral or in writing and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship or indentured learnership but does not include a foreign contract of service. Familiarization with the laws which have been passed to govern employment relationships and that define the basic terms and conditions of employment are crucial.
A basic condition of employment constitutes a term of any contract of employment, except to the extent that any other law provides a term that is more favorable to the employee or a term of the contract of employment that is more favorable than what is set out in law, thus such favorable terms and conditions of service shall apply. This article shall look at the following basic conditions: basic minimum wage, house allowance, hours of work, annual leave, maternity leave, paternity leave, sick leave, water, food and medical attention.
Basic minimum wage
Under the General Order under the Regulations of Wages and Conditions of Employment Act (though the Act has since been repealed the regulations under the Act are still in force by virtue of Section 63 of the Labour Relations Act) no person shall be employed at a basic minimum wage less favourable to him than that which is applicable to him under the Regulation of Wages (Amendment) Order 2015 which defines minimum rates of wages in cities and municipalities and Regulations of Wages (Agricultural Industry) (Amendment) Order 2015 which provides wage guidelines of agricultural areas. Minimum wage is normally reviewed every two years according to the Wages guidelines. The last minimum wage review was in June 2015.
Section 31 of the Employment Act obligates employers to provide reasonable housing accommodation for each of their employees, either at or near to the place of employment or shall pay to the employee such sufficient sum, as rent, addition to the wages or salary the employee as will enable the employee to obtain reasonable accommodation. This provision does not apply to an employee whose contract of service contains a provision which consolidates as part of the basic wage or salary of the employee, an element intended to be used by the employee as rent. The General Order provides for 15% of the basic salary as housing allowance in addition to basic salary, if free housing is not provided. Where the employer cannot provide housing, then the employer is under an obligation to pay to the employee house allowance to enable the employee to access reasonable housing. Provision of housing or in lieu thereof therefore is a basic minimum right of the employee and there is a correlative duty upon the employer to provide housing or pay housing allowance. The employer should therefore in the contract of employment state whether the salary is inclusive of the house allowance or not.
Hours of work, overtime and weekly rest
The normal working week shall consist of not more that fifty-two (52) hours of work for day employees and sixty (60) hours for night employees per week with one rest day in every seven days. Overtime shall be payable for time worked in excess of the normal number of hours per week at one and one-half (1.5) times the normal hourly rate and for time worked on the employee’s rest day or public holiday at two (2) times the normal hourly rate. Furthermore, overtime plus time worked in normal hours per week shall not exceed in any period of two consecutive weeks – one hundred and forty-four (144) hours for employees engaged in night work and one hundred and sixteen (116) hours for all other employees.
An employee is entitled, to a minimum of twenty one (21) days annual leave with full pay after every twelve months of consecutive service. Where in a contract of employment an employee is entitled to leave days in excess of the minimum specified above, the employer and employee may agree on how to utilize the leave days. Section 74(1)(f) of the Employment Act obligates an employer to keep a record of the annual leave entitlement of every employee, days taken and due. According to the Act, in any legal proceedings where an employer fails to produce such records it will be the burden of the employer to prove or disprove an alleged term of employment
Maternity and paternity leave
A female employee shall be entitled to three months maternity leave with full pay and on expiry of the maternity leave she shall have the right to return to the job which she held immediately prior to her maternity leave or to a reasonably suitable job on terms and conditions not less favourable than those which would have applied, had she not been on maternity leave. No female employee shall forfeit her annual leave entitlement on account of having taken her maternity leave. A male employee shall be entitled to two weeks paternity leave with full pay.
After two consecutive months’ service with an employer an employee is entitled to sick leave with full pay up to a maximum of thirty days and thereafter to a maximum of fifteen days with half pay, in each period of twelve months’ consecutive service, subject to the employee producing a certificate of incapacity signed by a qualified medical practitioner or a person acting on his behalf in charge of a dispensary or medical aid centre. This is according to the General Order.
Food, water and shelter
Every employer is duty bound to provide sufficient supply of wholesome water for the use of his employees at the place of employment and, as the case may be, within a reasonable distance of any housing accommodation provided for them by him. Section 33 of the Employment Act states, an employer shall, where the provision of food has expressly been agreed to in or at the time of entering into a contract of service, ensure that an employee is properly fed and supplied with sufficient and proper cooking utensils and means of cooking, at the employer’s expense. The law does not impose any obligation on the employer to provide food but if contractually agreed upon the above is the basic minimum required.
The employer is required to provide sufficient and proper medicine to his employees during times of illness and if possible medical attendance during times of emergency. This obligation stems from section 34 of the Employment Act. The attitude of the courts in interpreting Section 34 of the Act is also aptly captured in the recent case of Eddie Mutegi Njora v Mega Microfinance Co. Ltd  eKLR in which Mbaru J observed that:
“Where an employer provides a medical cover, such a cover is to ensure the employer has taken a progressive step to ensure all employees are covered in terms of medical care and attention at all times. Where an employer has not provided such a medical cover, once an employee is unwell, such information should be brought to the attention of the employer as soon as it is reasonably practical. The employer then has a duty to address the matter as appropriate where such sickness has been brought to their attention….”
In conclusion, it is important to for the employers to understand their obligation and ensure implementation of minimum employment conditions in compliance with statutory provisions, to improve the employee-employer relationship and overall advancement of economic development and social justice.
Medicare in the employment context