In recent months, the coronavirus pandemic has significantly affected the way a lot of companies carry out their operations by forcing a lot of the work force to work from home. With this in mind, it is important to analyze one key aspect of employment that is likely to undergo significant review and changes: flexible working. Flexible working is an arrangement which was, even prior to the coronavirus pandemic, being touted by many as the future model of working arrangements.

What is flexible working?

Flexible working is an arrangement that provides employees with greater scheduling freedom in how they carry out their employment duties. There are many forms of flexible working including homeworking, part time or reduced hours, job shares, flexi-time, compressed or annualised hours, career breaks, staggered start and finish times or self-rostering.

Such arrangements it has been shown, assist many employees in balancing their family obligations and their work duties whilst also utilizing their time more efficiently. Through flexible working, employees may for example choose to work remotely from a place other than the employer’s office; shift their everyday schedule by starting the day later or leaving earlier; and, work for less than the standard working hours either by fewer hours per day or by fewer days per week.

After an initial period of adjustment, a lot of the employees who have been asked to work from home by their employers have gradually adapted to the ‘new normal’ and there are indications that a lot of these employees would be open to working remotely and having flexible working hours even once the pandemic is over. Working from home has also been seen by many as a welcome relief from the hassle and bustle of commuting to and from work which is often quite time consuming.

What does the law say on flexible working?

Section 10 (2) (f) and (g) of the Employment Act stipulates that every employment contract must provide particulars of the place of work and hours of work for the employee.

Section 10 (3) (d) of the Employment Act further states that such particulars shall indicate either the place of work or, where the employee is required or permitted to work at various places, an indication of that place of work and of the address of the employer.

Regulation 5 of the Regulation of Wages [General] Order [the ‘Order’] states that the normal working week shall consist of not more than fifty-two hours of work spread over six days of the week while the normal working week of a person employed on night work shall consist of not more than sixty hours of work per week.

Regulation 7 of the Order however allows an employer and an employee by mutual consent to agree to the deferment of the employee’s rest day. These provisions, although providing a framework on the place and time when an employee is required to work, do not empower the employees to have a greater say in such a decision and employees are often given little opportunity to suggest alternatives which are more convenient to them. This position has however slowly been challenged and numerous groups have pushed for the enactment of flexible working as a right that each employee should be entitled to.

Flexible working under the Employment Act (Amendment) Bill, 2019

In April 2019, the Kenya Law Reform Commission (KLRC) and the State Department for Labour published a draft bill, the Employment Act (Amendment) Bill, 2019 [the ‘Bill’] and presented it for public consultation. This Bill proposes a wide raft of changes including flexible working. Despite being published in April 2019, the Bill is still in its formative stages and has not been placed before Parliament.

The Bill is very progressive in nature and gives an employee the right to apply to their employer for a change in terms and conditions of employment relating to— (a) the times when the employee is required to work; (b) where, as between employee’s home and a place of business of the employer, the employee required to work, or (c) such other aspect the Cabinet Secretary may prescribe.

An employer is obliged to consider such request by an employee and notify them of their decision on the application within a reasonable time. Importantly also, an employer is prevented from rejecting such an application except for the reasons provided in the Bill which are (i) the burden of additional costs; (ii) detrimental effect on ability to meet customer demand; (iii) inability to re-organize work among existing staff; (iv) inability to recruit additional staff; (v) detrimental impact on quality; (vi) detrimental impact on performance; (vii) insufficiency of work during the periods the employee proposes to work,  (viii) planned structural changes; and (ix) such other grounds as may be prescribed.

Flexible working in other jurisdictions

Legally, flexible working is a fairly new concept in African jurisdictions but provisions on the same have been enacted elsewhere in the world. In 2003 for example, eligible employees in the United Kingdom acquired the legal right to request flexible working arrangements and since then flexible working arrangements have become more established internationally in countries such as Italy, Germany, Finland and Australia.

According to an estimate by Forbes Magazine, in 2018, 50 percent of the U.S. workforce was projected to be remote; while in Europe, remote workers had grown from 7.7 percent to 9.8 percent over the past decade and globally, many top companies offer full, half, or partial remote work.

Conclusion and recommendations

The coronavirus pandemic will end sooner or later. That said, as businesses resume operations in line with the gradual and phased re-opening of the economy, employers should begin seriously considering flexible working arrangements which have been shown to lead to better productivity and well-being of employees.

Article by Jeff Kinuthia a lawyer with the Employment and Pensions Practice Group


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