Employment law updates (UPDATED) | Dentons - JDSupra - JD Supra

In this article, we have outlined our regular round-up of employment legislation updates which are important for employers and employees to consider.

1. Flexibility in background checks – Employment (Amendment) Act, 2022

The President has signed into law the Employment (Amendment) Act, 2022 (the Amendment Act) sponsored by Nominated Member of Parliament, Hon. Gideon Keter.

The Amendment Act has amended section 9 of the Employment Act, 2007 (the Employment Act) and some of its salient features include:

• an employer is required to request the relevant compliance and clearance certificates from prospective employees only upon granting them an offer of employment. In most instances, compliance and clearance certificates are usually required from the Kenya Revenue Authority (KRA), the Higher Education Loans Board (HELB), the Directorate of Criminal Investigation (DCI), the Credit Reference Bureau (CRB), and the Ethics and Anti-Corruption Commission (EACC);
• an employer is allowed to rescind an offer of employment where the prospective employee:
  • cannot provide the necessary clearance or compliance certificates; or
  • after providing the necessary certificates, is unable to satisfy the mandatory clearance requirements.

We note that background checks are a key component of the hiring process as they assist employers in deciding if an individual is the right person for the job. The above changes will necessitate employers changing their recruitment processes and, in particular, how they conduct background checks.

2. Right to disconnect – Employment (Amendment) Bill, 2021

The Senate’s Employment (Amendment) Bill, 2021 (the Amendment Bill) is set for its third reading in Parliament. It seeks to amend the Employment Act by providing employees with the right to disconnect from employers outside agreed working hours.

Some of the salient features under the Amendment Bill include:

• the development of a policy by an employer with more than 10 employees on the right to disconnect. The policy is to be developed in consultation with employees and trade unions and should provide for the following:
  • circumstances under which an employer may contact an employee during out of work hours;
  • use of electronic devices to send or receive information, messages or any digital work-related communication during out of work hours;
  • circumstances under which the right to disconnect may be waived; and
  • the nature of compensation for employees who work during out of work hours;
• the exemption from the right to disconnect of essential service providers set out in the Fourth Schedule to the Labour Relations Act and employees contacted during out of work hours by employers where such contact is to address an emergency.

The Bill defines out of work hours to mean hours other than the hours of work agreed upon between an employer and an employee in the contract of employment, while right to disconnect means an employee’s entitlement not to be contacted by the employer during out of work hours as per the employer’s policy.

The Amendment Bill provides that a person who contravenes the above provisions commits an offence and is liable, on conviction, to a fine not exceeding Ksh 500,000 (approximately US$5,000), imprisonment for a term not exceeding one year, or both.

The COVID-19 pandemic saw a shift to remote working and changed the dynamics of how businesses operate. The right to disconnect seeks to promote the attainment of a work-life balance.

Several jurisdictions including France, Italy and Spain have introduced legislation which grants employees the right not to respond to work-related communications after their core hours and prohibits them from being penalised for this. In Germany, changes have been implemented by companies rather than the law, with stakeholders of key German companies entering into negotiations about which policies to implement to ensure employees can disconnect. It is therefore unsurprising that Kenya seeks to join other countries in promoting a work-life balance.

* Dentons Hamilton Harrison & Mathews thanks and acknowledges Legal Assistant Roselyne Mugo for her contributions to this article.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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source: https://www.jdsupra.com/legalnews/employment-law-updates-updated-4688576/

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