This archive report was first published on 19 May 2020.
Kenyan Employers Face Injustice in Pandemic Bill ¶
May 19, 2020, 0:01
By WILLIAM MAEMA
As the world grapples with the Covid-19 pandemic, the Kenyan government has been busy crafting legislation to address the crisis. However, the National Assembly and Senate's approach to passing bills has led to a near head-on collision between various pieces of legislation, resulting in a piecemeal approach to addressing employment issues.
The Pandemic Response and Management Bill, 2020, also known as the 'Sakaja Bill,' has been criticized for its inadequate handling of employment issues. The bill devotes only a few lines to employment matters and deals with termination, pay cuts, and unpaid leave in an inadequate manner.
Some of the issues that the bill fails to address include whether layoffs during a pandemic constitute redundancy, force majeure, or frustration, and whether statutory benefits like housing and medical should subsist during unpaid leave. The bill also fails to provide clear guidance on employers' health and safety obligations while employees work from home.
A better approach would be to develop a specific bill dedicated to addressing the plethora of employment issues that have arisen, borrowing from best practices across the world. This would provide Kenyan employers, employees, and stakeholders with an opportunity to raise and discuss the challenges they are facing to ensure that the solutions contained in the new law are comprehensive, practical, and balanced.
The Sakaja Bill's provision that an employer shall not terminate an employee's contract during a pandemic effectively provides a blanket protection for employees and freezes all manner of terminations, including those initiated on disciplinary grounds or redundancy. However, this provision may lead to ambiguous interpretations and may not be effective in addressing the challenges faced by employers.
Furthermore, the bill's language on unpaid leave is feeble and may result in employers being unable to require employees to take unpaid leave, even if it is necessary for the business. The bill also fails to provide clear guidance on pay cuts, leaving employers vulnerable to lawsuits from employees who may claim that they were coerced into accepting a pay cut.
Just like the 9/11 terror attack changed the way we travel, Covid-19 has changed the way we work. A winning strategy should involve the marshalling of a comprehensive legislative arsenal to address all the gaps laid bare by the devastation left behind by the enemy.
Mr Maema is a Senior Partner at DLA Piper Africa, IKM Advocates.
