On 31 December, 2019, a new coronavirus was identified in China (Wuhan City), and was initially known as 2019 Novel Coronavirus (2019-nCoV). It has been now formally named COVID-19. The virus has spread in most of the world with Kenya having its first confirmed case on 13 March 2020 with numbers increasing steadily to 50 cases.

The spread of the virus has impacted the economy of Kenya negatively, with employers left with various concerns with regards to their obligations to their respective employees. These concerns range from safety and health at the work place, can an employee work from home, are there duties imposed on employers with regards to health and safety of employees working from home, reduction of an employee’s wages/pay and redundancy.

Below we address some of these concerns.

1. Is there a duty to the Employer to provide a safe and healthy working environment vis a vie working from home?

a) What are the employers duties/obligations with regards to safety and health at the work place?

The Occupational Safety and Health Act No. 15 of 2007 was enacted to apply to all workplaces where any person is at work, whether temporarily or permanent. The purpose of the Act is to secure the safety, health and welfare of persons at work and to protect persons, other than persons at work, against risks to safety and health arising out of, or in connection with, the activities of persons at work.

The Act mandates every employer to safeguard the safety, health and welfare of all persons working in the workplace. Some of the duties imposed by the Act on the employer include: the provision of such information, instruction, training and supervision as is necessary to ensure the safety and health at work of every person employed; the maintenance of any workplace under the employer’s control, in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from the workplace that are safe and without such risks to health.

These provisions come into play especially in this Covid-19 global pandemic. The Kenyan Government through the Occupational Safety and Health Advisory on the Coronavirus (COVID-19) issued on 14 March 2020 (the “Advisory”) mandates all workplaces to develop infection control plans and policies among which include: provision of clean and well maintained hand washing facilities or offering alcohol-based hand sanitizers; regular cleaning of objects that are touched frequently; ensuring ventilation systems at the workplace are working; limiting all forms of employee gatherings; social distancing during meetings; limiting food sharing; promoting homestay/working from home.

The measures outlined in the Advisory are in line with the provisions of the Occupational Safety and Health Act that mandate every employer to carry out appropriate risk assessments in relation to the safety and health of persons employed and on the basis of these results, adopt preventive and protective measures to ensure that their intended use are safe and without risk to health.

The Act goes ahead to also impose on the employee certain duties while at the work place. These duties are geared towards ensuring that the employee is mindful of his own safety and health and that of other persons who may be affected by his acts or omissions at the workplace and that the employee cooperates with his employer or any other person in the discharge of any duty or requirement imposed on the employer by the Act.

b) Can an employee work from home?

Pursuant to section 10 of the Employment Act No. 11 of 2007, a contract of service must provide details of the place of work of the employee.

The Coronavirus (COVID-19) directive issued by the Government of Kenya on 15 March 2020 (the “Directive”) encourages businesses and companies to allow employees to work from home with the exception of employees working in critical or essential services.

In light of the provision of the Employment Act and the Directive, it will be important for employers to review employment contracts to determine if there are any provisions stipulated therein allowing for and providing guidelines on working from home.

If the employment contract restricts working from home, employers will need to in consultation and written consent with the employee formulate working from home policies/guidelines.If there are no work from home provisions an employee can be in breach of the employment contract if there is no agreement with the employer to work from home.

Under the Directive, employers will also need to identify which employees are working in critical and essential services. These may be services that may not necessary be performed from home and go to the core of the business and affect the bottom line of the company and its ability to provide goods or services and in turn make revenue.

Once identified, the employer is required to communicate its decision to the employees alongside a work from home policy. Any requests by employees to work from home should not be unreasonably withheld.

2. Does the employer therefore have a responsibility under the Occupational Safety and Health Act and the Directive to still provide a safe and healthy working environment for its employees working from home?

The answer to this is in the affirmative.

The employer’s responsibility towards the safety and health of its employees does not cease merely because the employee is working from home. What has simply taken place is that the place of work as outlined in the employment contract has changed due to necessity and in line with the Directive.

The provisions of the Occupational Safety and Health still remain in place and can be achieved by the employer setting out policies/guidelines with regards to a safe and healthy working environment at home.

In terms of enforcement, it should be borne in mind that the employee has a duty under the Occupational Safety and Health Act to comply with the safety and health procedures, requirements and instructions given by a person having authority over him for his own or any other person’s safety. A contravention of this provision by the employee is an offence under the said Act.

3. Can an employer reduce and employee’s pay during this Covid-19 global pandemic?

Payment of wages/salaries by an employer is a right that is due to an employee and protected under part IV of the Employment Act. The remuneration, scale or rates of remuneration, the methods of calculating that remuneration and details of any benefits is a term that must be set out in the written contract of service/employment contract.

The protection of wages therefore is a fundamental part of the terms and conditions of the employment contract and cannot be unilaterally changed to negatively affect the employee.

If an employer wishes to implement any salary reductions, it would need to obtain the employee’s written consent. Where an employer unilaterally implements such changes, the employee may succeed in a claim for constructive dismissal.

4. Can an employer declare an employee redundant in this Covid-19 global pandemic?

In the midst of the Covid-19 global pandemic, various companies maybe facing reduced/nil revenues or may be facing liquidation/winding up. Most measure put in place by the Government are for the short term and geared towards stopping/slowing down the spread of the virus. The bigger concern however is if the economic situation arising out of the Covid-19 virus continues to deteriorate to the detriment of companies.

If the situation does persist and the Directive leads to continued low revenues for an unprecedented duration, the Company may be forced to explore alternative measures of sustaining the viability of the business such as putting in place redundancy measures.

Section 40 of the Employment Act provides for termination of employment on account of redundancy. Redundancy is defined by the Employment Act as the loss of employment, occupation, job or career by involuntary means through no fault of an employee. It involves termination of employment at the initiative of the employer, where the services of an employee are superfluous.

The Employment Act requires that notices be issued to the employee and the Labour Officer and that two key fundamentals be satisfied during a redundancy process. Failure to meet the two fundamentals renders the redundancy exercise flawed and exposes the employer to a claim of unfair termination. 

These fundamentals are:

1. Justification for the redundancy  - the employer must prove that the loss of employment in redundancy cases is by involuntary means and at the initiative of the employer. That the redundancy is brought about by operational requirements of the employer such as reduction in number of employees so as to respond to adverse market conditions and to improve efficiency; and 
2. Procedural fairness – the employer must strictly comply with the provisions of Section 40 (1) of the Employment Act for termination on account of redundancy to be lawful.  

The Employment Act further provides that in selecting employees to be declared redundant, the employer must have due regard to seniority in time and to the skill, ability and reliability of each employee of the class of employees affected by the redundancy. The employer must develop and apply an objective process for identifying the employees who will be affected by the redundancy.

Article by Judy Kabubu, Principal Associate, MMAN Advocates