Kenya
Answer ... Kenyan employment law and the Kenyan employment and labour relations are supportive of employee claims and are said to be ‘pro-employee’. While the current law is robust, it still has gaps and does not address issues such as constructive dismissal or the effects of a business acquisition on employees. However, proposed reforms suggest that change is afoot. Current legislative reforms include the following.
Draft (Employment) Amendment Bill 2019: If assented to, the draft (Employment) Amendment Bill 2019 will introduce reforms to the employment laws, including:
- the introduction of rules on the transfer of employees during a business acquisition, merger or transfer, and the treatment of employees in the event of the employer’s death;
- the introduction of flexible working time for employees in the workplace;
- the introduction of constructive dismissal, suspension and compassionate leave, which are not recognised under the current employment law;
- the introduction of one month’s parental leave for female employees who experience stillbirth and 10 days’ education leave for employees undertaking further education;
- an increase in the duration of sick leave from seven days with full pay and seven days with half-pay to 30 days with full pay and 15 days with half-pay;
- the introduction of laws on data protection when an employer processes employees’ data and monitors employees; and
- the introduction of arbitration and mediation as a form of dispute resolution in employment claims.
The bill is awaiting its third reading at the National Assembly, although it is unclear how long it will take to be tabled.
Data Protection Act: On 14 January 2022, the cabinet secretary for information and communications technology published the following regulations giving effect to the Data Protection Act’s provisions:
- The Data Protection (General) Regulations, 2021 set out procedures for the enforcement of the rights of data subjects such as employees, as stated in question 2.4, and elaborates on the duties and obligations of employers, which are considered to be data controllers. Among other things, the regulations require an employer to publish and regularly update a policy reflecting its personal data handling practices.
- The Data Protection (Complaints Handling and Enforcement Procedures) Regulations, 2021 set out the procedure for lodging a complaint with the Office of the Data Protection Commissioner. An employee may lodge a complaint where he or she is aggrieved by a decision of the employer in respect to the processing of personal data.
- The Data Protection (Registration of Data Controllers and Data Processors) Regulations, 2021 define the procedure adopted by the Office of the Data Protection Commissioner to register companies as data controllers and data processors under the act. Employees are not considered to be data processors. The regulations will come into force in July 2022.
Employers should familiarise themselves with the provisions and requirements of the Data Protection Act and the stated regulations for compliance purposes.