On 4th April 2022, H.E. President Uhuru Kenyatta signed into law the Employment (Amendment) Act, No. 15 of 2022 (the “Amendment Act”).
The Amendment Act amends section 9 of the Employment Act, 2007 (the “Employment Act”) which introduces prerequisites for recruitment of employees with regards to general conditions of a contract of service. The amendment came into force on the 22nd of April 2022.
This amendment was necessitated by the countless requests by employers to potential employees requiring them to obtain and submit clearance or compliance certificate (s) during the job application phase before being interviewed. The clearance certificates would cost applicants money to obtain and would also administratively, take a long time to secure, thus indirectly discouraging applicants from applying for jobs.
The said clearance or compliance certificate (s) include but are not limited to:
- A certificate of good conduct from the Director of Criminal Investigations;
- A certificate from the Ethics and Anti-corruption Commission;
- A certificate from the Kenya Revenue Authority;
- A certificate from the Credit Reference Bureau; and
- A certificate from the Higher Education Loans Board.
In summary, the Amendment Act provides that:
1. During the recruitment process, submission of any clearance or compliance certificate (s) by an employee shall not be a requirement not unless the employer desires to enter into a contract of service with the employee.
2. Notably in circumstances involving applicants for state office (s), clearance or compliance certificate (s) shall be provided on a need basis during the recruitment or approval process.
3. An employer who has made up their mind to engage an employee via a written contract of service is at liberty to ensure the provisions of Chapter Six of the Constitution of Kenya (“Leadership and Integrity”) are fulfilled by requesting an employee to provide mandatory clearance or compliance certificate (s) from the relevant authorities or entities.
4. In spite of the amendment, an employer has the discretion to withdraw an offer of contract of service in the event an employee fails to provide clearance or compliance certificate (s).
5. To shield potential employees from recurring costs during their job seeking journey, the authorities or entities which issue clearance or compliance certificate (s) have been directed not to charge a fee for the said clearance or compliance certificate (s).
6. Further to that, the authorities or entities are required to issue an applicant with the clearance or compliance certificate (s) or reject the application within seven days of receipt of the application.
For avoidance of doubt an “employee” shall include an applicant for employment, “employer” shall include an employment agency while a “relevant entity” shall include any public or private entity that issues clearance certificates for purposes of fulfilling the requirements under Chapter Six of the Constitution of Kenya.
The practical effect of the amendments are:
- A large hindrance in the recruitment process has been removed. Unemployed youth will now be at liberty to apply for jobs without any financial or administrative hindrance. Also, employers will now have a larger pool of applicants to choose from thus improving their quality of their human resource pool.
- At the point of making an application for employment, a prospective employee will not be required to submit clearance or compliance certificates as condition for consideration for employment.
- However, in the event the prospective employee succeeds in the interview process and an offer of employment is made, the employer can require him/her to provide the clearance certificates failure to which, the offer of employment can be withdrawn as the discretion of the employer.
- An exception is made for applications for state offices, where the need to provide the compliance or clearance certificates can be made during the recruitment process.
- All authorities that provide clearance and/or compliance certificates shall not charge a fee for the service. As this service contributed substantially to the revenue of these entities, the Treasury (and by extension, the taxpayer) will have to plug the revenue hole by making adequate budgetary provisions from the consolidated fund.
- The time for the authorities to respond to a request to provide a clearance or compliance certificate is limited to seven (7) days. This is easier said than done and there does not seem to be a manner of enforcing this requirement.
In light of the amendment to the Employment Act, employers need to review their current recruitment policies to take into consideration the new provisions.
We remain available to advise clients on any necessary amendments and changes that need to be undertaken in their recruitment policies to ensure that they are in compliance with the law.
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