Employment law is a vital component of labor regulation, overseeing the employer-employee dynamics in businesses. It mandates employment contracts for businesses with more than one employee engaged for over four weeks and covers fundamental employee rights, employment conditions, and child labor regulations. This law addresses critical issues such as prohibiting forced labor, combatting employment discrimination, particularly sexual harassment (for workplaces with 20 or more employees), defining various employment relationships, specifying employee rights and employer responsibilities, and handling employment terminations, insolvency, records, and dispute resolution.
It also mandates written employment contracts for periods exceeding three months, emphasizing the need for employee understanding. Furthermore, employment law governs aspects like annual leave, public holidays, sick leave, and notice periods, often integrating collective agreements where applicable. Significantly, with the 2010 Kenyan Constitution and the elevation of the Employment & Labour Relations Court, employment law has gained prominence, notably in addressing high-profile sexual harassment cases, emphasizing the role of Human Resource Managers in safeguarding employee rights and ensuring fair workplace practices. Additionally, it relates to industrial relations, rooted in the Kenyan Constitution and the Labour Relations Act, which promotes equitable labor-management relationships, dispute resolution efficiency, and timely strike management, ultimately enhancing worker welfare and overall business prosperity.
Articles 70 to 86 of the current Constitution establish and safeguard fundamental rights, which also encompass labor rights. These fundamental rights include the prohibition of inhuman treatment and protection from slavery and forced labor. Furthermore, the Constitution guarantees freedom of association, outlining detailed procedures for trade union registration and representing a substantial proportion of interests as grounds for registration refusal. While the right to strike isn’t explicitly mentioned, the Constitution protects the right to organize and engage in activities that safeguard individuals’ interests. Additionally, the Constitution ensures personal liberty, freedom of movement, and protection from discrimination on various grounds.
The evolution of labor law in Kenya traces back to the colonial era, when legislation was introduced to secure a steady supply of inexpensive labor. Over time, the law of contract, initially based on the Indian Contract Act of 1872, evolved into English common law, under the Kenyan Law of Contract Act. The organized trade union movement began to emerge with industrialization in the mid-20th century, gaining strength and political significance in the fight for independence. This led to the introduction of labor laws and the creation of an Industrial Court in 1964. Later, in 2001, a task force was established to review labor laws, aiming to extend labor regulation into the informal sector, harmonize legislation within the East African Community, and redraft various acts to create a comprehensive, user-friendly labor code, among other goals. Five draft texts were prepared to replace existing labor legislation, addressing issues like trade union regulation, labor institutions, employment conditions, occupational health and safety, and work injury benefits. These drafts are currently undergoing the adoption process.”