Errors employers make

7 common employer errors in Kenya

It is a wonderful thing to grow your business by hiring more employees. Whereas such growth is something to be proud of, such growth also requires that you, the employer has systems in place to manage the work force. These systems must be lawful and particularly, must comply with the Country’s labor laws.

From my practice in the employment and labor relations court, I have realized that there are seven mistakes employers make when dealing with their employees. They are:

Employment at will.

It is a standard in the law of contract that contracts are negotiated and entered at will. it is therefore right to say that the same principle permeates to the employment contracts, that an employee can be engaged at will. The employment-at-will concept means that either party to the employment contract may terminate the employer-employee relationship at any time, with or without cause, if the reason is not illegal.

General contract law makes provision for exceptions to contracts at will and they are:

  1. Termination of the contract must not be contrary to public policy. Such policy is usually found in the country’s court decisions, statutes, regulations and norms/culture.
  2. Actual or implied contracts which strictly rule out any contract-at-will. in the case of employment contracts, provisions on termination of employment in the employment manual are impliedly part of the employment contract. Also, constant assurances to employees that they have “permanent” jobs if they deliver adequately on their jobs can also be an implied term that the contract is permanent except if the employee does not deliver.
  3. The good faith and fair dealing exception requires that good faith be incorporated in every contract. This means that before the contract is terminated, there must be a justification for such termination.

So, before you have a clear agreement with your employee that their employment contract is one at will, remember that you are in Kenya, where employers do not fire employees at will. Therefore, even if your employee’s contract says that their employment is one at will, simply give them notice, in writing, stating the reasons why you are terminating their contract. At this point, remember to consult us for advice on how to go about the process of termination because depending on the reason for termination, the law requires that further procedures be complied with (which if you do not comply with, you will undoubtedly have an incident of bad separation).

Labor laws in non-union workplaces.

In work places where employees are represented by trade unions, employers are aware of the basic requirements of labor laws. For example, in such workplaces, employers know that they cannot negotiate new contracts with a single employee and that all employee grievances must be addressed using the procedures agreed upon.

The mistake under this point is usually made by employers whose employees are not expressly unionized. Such employers usually violate labor laws when for example, they prohibit a drive to form a trade union. If an employer dismisses an employee or two for organizing or asking other employees to join or form a trade union, or for being part of a campaign to be unionized, such an employer will have committed a grave violation of labor laws which can lead to long and expensive litigation.

To note is that all employees whether they belong to a trade union or not are protected by the Employment Act and all labor laws which bind the country.

  1. Salary and working hours

The most common mistake employers make in relation to salary and working hours is to think that a salaried employee is not entitled to overtime. Employers usually err and pay employees for thei scheduled work hours even when they are aware that employees begin and end their work duties beyond their working hours.

Allowing employees to accumulate compensatory time instead of paying them for overtime is another mistake employers do

  1. Hiring, retention, firing, and references.

Who does not want to hire a competent employee? But how do you arrive at this competent employee, and for a reasonable price, without seeming discriminatory?

It is important that the company follows their hiring procedures carefully, and to document the entire process. For example, when you are hiring for a sales position and there is candidate A and there is candidate B, you must document the reasons why you chose candidate B and not candidate A for the job. If B was smartly dressed, unlike A who was dressed casually; if B was attentive and looked the interviewer in the eye, unlike A who was distracted and looked down at the table while answering his questions; if B was confident, unlike A who was nervous; document all that!

It will be a disaster if A files a claim against you that you hired B because he is of a certain tribe and you have nothing to prove otherwise.

Also, an employer has the right to terminate an employee’s contract if the employee becomes a hazard to the work place. But then, what does an employer do when they receive requests for references for that employee who was fired? In such situations, there are two risks on the part of the employer:

  1. A defamation claim from the former employee
  2. A failure to warm claim from the subsequent employer or a third party whose injury could have been prevented if the employer had given an accurate reference.

To mitigate the above risks, the employer should only respond to written requests for reference and should include accurate information which can be substantiated.

  1. Discrimination and harassment laws.

What is the scope of discrimination laws? What is harassment, according to the law?

The scope of discrimination is not limited to gender and tribe. It goes further than that. It includes age, arrest record, sex orientation, color, body size/shape, among others.

Harassment at work is when enduring the offensive conduct becomes a prerequisite to continued employment, or the conduct of the harasser is severe or pervasive enough that a reasonable person would consider the workplace intimidating, hostile, or abusive. The definition is very wide. An employer must make sure that he is not presiding over an environment where one employee is suffering harassment.

  1. Safety and health requirements.

It is every employer’s duty to provide a safe working environment. Employees must be given safety equipment, and that equipment should be properly used. Also, health and safety policies must be followed to the dot.

It is therefore not enough to provide safety equipment, but it is most important to train employees about health and safety at the work place so that they do not have an opportunity to allege that they did not know how to use the equipment provided. The Occupational Safety and Health Act, 2007 issues general safety standard and specific standards for certain industries and these standards must be adhered to. If you are an employer, your one stop shop for all your occupational safety and health needs (equipment and training) is Viscar.

If the work place does not comply with those standards, the employer risks being cited for violating those standards.

  1. Privacy issues.

In a modern workplace, employee privacy concerns may arise from the use of security cameras, emails, telephones, internet monitoring, alcohol and drug tests, tracking of motor vehicles, and searches of lockers, desks, desks, briefcases, and bags.

Searches, motor vehicle tracking, intercepting phone calls or other electronic communication are all subject to state laws on privacy.

If you must do something that may violate an employee’s privacy, then you must inform the employees in advance about such activity. This information should be given at the earliest opportunity, most especially at the time of hiring. The same should be restated in the human resource manual in the privacy policy. Such intrusion, must also be restricted to a degree necessary to protect the employer’s interests.

Conclusion

The above are the most contentious issues in Courts of law, regarding employers and employees. You do not have to be caught in the maze. Call us today and we shall advise on how to go about restructuring your work place.

BY SAMALI BITALA

This article appears in our law newsletter Vol 2 Issue 2 of February  16th  2018. To receive The Deuteronomy in real time, click HERE

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