An Act Of Parliament To Amend The Employment Act to provide for the right to disconnect and the right of employees to have their personal time and privacy respected.


Clause 2

Insertion of new section 27A

The right to disconnect

An employee has the right to disconnect from their employer.

An employer shall, for the purposes of subsection (1):

a. put in place a policy regarding the:

i. circumstances under which an employer may contact an employee during out of work hours;
ii. use of electronic devices to send or receive information, messages or any digital work related communication during out of work hours; and
iii. circumstances under which the right to disconnect may be waived.

b. specify the nature of compensation for employees who work during out of work hours.

Where an employer has employed more than ten employees, such employer shall, in formulating a policy under subsection (2), consult the respective employees or, where applicable, trade union.

The right to disconnect shall be subject to the terms and conditions specified under section 10.

The right to disconnect shall be limited only to the extent necessary to address an emergency arising out of the work falling within the responsibility of the employee.

Subject to subsection (5), an employee shall not be reprimanded, punished, or subjected to disciplinary action if the employee disregards a work related communication during out of work hours.

Where an employer contacts an employee during the period when there is no mutually agreed out of work hours, the employee:

a. shall not be obliged to respond and shall have the right to disconnect; and
b. may choose to respond, for which the employee shall be entitled to get compensation.

The provisions of this section shall not apply to the provision of essential services specified under section 81 of the Labour Relations Act.

A person who contravenes this section commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding one year or to both.

In this section:

"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 purpose of this proposed amendment is to establish and protect employees’ rights to disconnect from work-related communications outside their work hours in today’s digital era. It aims to tackle the rising issue of employee burnout. The constant digital connectivity is gradually encroaching on employees' leisure time, thereby impacting their work-life balance. Thus, this proposed amendment endeavours to find a middle ground between professional responsibilities or work life and personal life.

This concept has gained prominence in response to the increasing prevalence of remote work and the increased use of technology, which has made It easier for employers to contact employees at any time, blurring the boundaries between work and personal life.

This proposal has the following potential benefits:

a. It encourages employees to disconnect outside of working hours promotes a healthier work-life balance. It allows employees to spend quality time with their families, engage in personal activities and rest without the constant pressure to be available for work-related matters;
b. It mitigates against employee burnout, which has serious physical and mental health consequences, by setting clear boundaries between work and personal life;

c. It increases employee productivity by ensuring employees are well rested and have a good work-life balance; and

d. Employers that prioritize work-life balance and respect the employees’ right to disconnect are often more attractive to potential hires. Furthermore, such policies contribute to bolstering employee retention rates.

For sub-clause (5), we propose that the term “emergency” is defined in the bill.

The exclusion of this definition will lead to differing interpretations between the employer and employees on what constitutes an “emergency”.

For sub-clause (7) (b), we propose an amendment to provide for the modalities of compensation including the amount of compensation and the relief available to an employee who is not compensated. It would be reasonable to peg the amount of compensation to the applicable over-time rate or an equivalent amount.

With regard to the punishment, it is our view that the possibility of imprisonment for breach is too severe or disproportionate to the offence, and the same should be restricted to a fine.

The proposed amendment aims to address the existing ambiguity with respect to the mode of compensation and the remedies available in cases where employees are not compensated.