No work calls after hours, new Bill in Kenya parliament says

A proposal to enact a law barring employers in Kenya from pestering their staff with work after office hours has elicited strong emotions, with the Federation of Kenya Employers (FKE) accusing the Senate of seeking to micromanage private enterprises.

The Employment (Amendment) Bill, 2022, fronted by Nandi Senator Samson Cherarkey, proposes to introduce a law preventing employers from interfering with employees’ personal time by limiting contact after hours.

Ostensibly aimed at promoting  a healthy work-life balance for employees, the Bill seeks to amend section 27 of the Employment Act, 2007 to introduce ‘the right to disconnect’ by employees, effectively empowering workers to ignore work-related calls, messages and emails during out-of-work hours.

It is also pushing for employers to put in place a policy to explain circumstances when they may contact employees during out-of-work hours and specify the nature of compensation for employees who work overtime.

“Where an employer has more than ten employees, such employer shall, in formulating a policy, consult the respective employees or, where applicable, trade union.”

“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,” the Bill states, with the proviso that such contact should be to address an emergency within the employee’s responsibility.

It also states that, in case an employer has no specific work hours with the employee, if the employer contacts an employee, the latter shall not be obliged to respond and, if one chooses to, they shall be entitled to get compensation.

“This Bill seeks to address increased employee burnout. Digital connectivity has also been noted to be slowly eroding leisure time for employees hence affecting their work life balance,” Senator Cherarkey says.

Reacting to the proposal, FKE Executive Director Jacqueline Mugo yesterday said that the Bill would hinder the government’s objective to create jobs for youth and women, and support the informal sector since operations of many companies will be affected.

“FKE does not agree with the proposed amendments because they not only present radical changes to the Employment Act 2007, but also introduce new stringent measures that will curtail the prerogative to manage enterprises by the owners. This will automatically pose a challenge to industrial relations in Kenya,” Ms Mugo said.

Saying FKE had engaged the 12th Parliament and had been led to understand that the idea was dropped, Ms Mugo noted that the proposed amendments “negate the very essence of managing enterprises freely to meet the demands and challenges posed by the market”.

“With the concept of formalising the informal economy, this bill introduces changes that will make it difficult to persuade informal enterprises to join the mainstream economy for the country’s general growth and decent work.”

“The Bill fails to meet the simple threshold of the ILO [International Labour Organisation] conventions. The bill, if passed, will create two centres of managerial power and cause disharmony and indiscipline in workplaces,” the federation argues.

FKE further objects to the proposal to have employers develop policies to regulate phone usage by employees after hours, arguing that, if the phone belongs to the employer, employees are under obligation to answer.

“An employee has the right to keep their phone on or off if it is a personal phone. If the phone is an official one, then the employee is under obligation to use it as required by the enterprise. If the nature of the business requires shifts or extension of working hours to meet business demands, then such prescriptive nature will kill enterprises,” it states.

FKE said low to middle level skilled and service sectors will be most affected if the Bill is passed, affecting the employment of youth and women.

The federation further argued that the concept of work, workspace and work hours have changed and that companies must adapt to it, terming Bill as stuck in the past.

FKE said that, with new realities in the aftermath of the Covid-19 pandemic, employers and the employees should be allowed to agree among themselves what arrangements work for them.

“The engagement between employer and employee during out of work hours is a management issue and should not be legislated,” FKE stated.

Senator Cherarkey had previously moved a similar Bill, The Employment (Amendment) Bill, 2021, which failed to sail through.

During a debate in Senate in April last year, he argued that, due to employers’ tendencies to contact workers after hours, workers had suffered dire impacts, including burnouts and broken marriages.

“Technology has led to employees being called late at midnight and yet some of them are non-essential staff. Most of these issues have led to break-down of families and lack of quality time. When your boss calls you at night — especially if it is of the opposite gender — you might need to give a proper explanation to your spouse as to who that person is,” the senator said.

The new Bill proposes that any employer who contravenes the law should be fined Sh500,000 or be jailed for one year, or both.

Under the proposed law, the right to disconnect means an employee’s entitlement not to be contacted by the employer during out-of0-work hours as per the employer’s policy.