How to Protect Yourself from Unfairness at Work: A Guide to the Key Laws in Kenya - KaziQuest Recruiting Software & Applicant Tracking System

Navigating your rights: 8 Kenyan labor laws to protect you from workplace pitfalls.

Work is an essential part of our lives. It provides us with income, security, and satisfaction. However, work can also be a source of stress, frustration, and injustice. Many workers face common workplace issues such as unfair wages, discrimination, and unsafe conditions. These issues can affect their well-being, productivity, and dignity.

Fortunately, workers in Kenya have legal rights and protections that safeguard them against unfairness at work. These rights and protections are derived from various sources, such as national laws, international conventions, and the constitution. By understanding your rights, you can walk into your workplace with confidence and address any concerns head-on.

In this guide, we will dive into the crucial laws that cover the most common workplace issues in Kenya. We will also provide some tips on how to exercise your rights and seek remedies if you encounter any problems at work.

The Employment Act, 2007

The Employment Act, 2007 is the main law that regulates the employment relationship in Kenya. It covers various aspects of employment, such as contracts, wages, benefits, working hours, leave, termination, and dispute resolution. It also provides for the rights and obligations of both employers and employees.

Some of the key sections of the Employment Act that address common workplace issues are:

Section 4: Prohibition against forced labour. This section prohibits any form of forced or compulsory labour, which is defined as work or service that is exacted from a person under the threat of any penalty and for which the person has not offered himself or herself voluntarily.
Section 5: Discrimination in employment. This section prohibits any discrimination against an employee or a prospective employee on the grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status, or HIV status. It also requires employers to promote equal opportunity in employment and eliminate any barriers that may affect the recruitment, training, promotion, and retention of employees.
Section 6: Sexual harassment. This section defines sexual harassment as any unwelcome sexual advance, request for sexual favour, or other verbal or physical conduct of a sexual nature that interferes with the work performance or creates an intimidating, hostile, or offensive work environment. It also requires employers to have a policy on sexual harassment and to take appropriate measures to prevent and deal with any cases of sexual harassment.
Section 10: Employment particulars. This section requires employers to provide employees with a written statement of the main terms and conditions of employment, such as the name and address of the employer and employee, the nature and place of work, the remuneration and benefits, the working hours and rest periods, the leave entitlement, the notice period, and the grievance and disciplinary procedures.
Section 17: Payment of wages. This section requires employers to pay employees their wages in full, on time, and in the agreed manner. It also prohibits any unlawful deductions, fines, or charges from the wages of employees, except as authorized by law or by a written agreement.

The Labour Relations Act, 2007

The Labour Relations Act, 2007 is the law that governs the collective aspects of labour relations in Kenya. It provides for the registration, regulation, management, and dissolution of trade unions and employers’ organizations. It also provides for the promotion and facilitation of collective bargaining, the settlement of labour disputes, and the protection of the right to strike and picket.

Some of the key sections of the Labour Relations Act that address common workplace issues are:

Section 4: Freedom of association. This section guarantees the right of every employee and employer to form, join, or participate in the activities of a trade union or an employers’ organization of their choice, without any interference, coercion, or discrimination.
Section 41: Recognition of trade unions and employers’ organizations. This section requires employers and employers’ organizations to recognize and deal with the trade unions and employers’ organizations that represent the majority of their employees or members, respectively. It also provides for the procedure and criteria for determining the representativeness and recognition of trade unions and employers’ organizations.
Section 54: Collective bargaining agreements. This section provides for the negotiation, conclusion, registration, and enforcement of collective bargaining agreements between trade unions and employers or employers’ organizations. It also provides for the review, variation, and termination of collective bargaining agreements.
Section 76: Strikes and lock-outs. This section defines a strike as the cessation of work by a body of employees acting in combination, or a concerted refusal or a refusal under a common understanding of employees to continue to work for an employer, done as a means of compelling the employer to accept or not to accept terms of employment or conditions of work. It also defines a lock-out as the closing of a place of employment, or the suspension of work by an employer, or the refusal by an employer to continue to employ any number of employees, done with a view to compel the employees to accept or not to accept terms of employment or conditions of work. It also provides for the conditions and procedures for the exercise of the right to strike and lock-out, and the consequences and remedies for unlawful strikes and lock-outs.
Section 87: Labour disputes. This section defines a labour dispute as any dispute or difference between employers and employees, or between employers and trade unions, or between employees and trade unions, concerning any employment matter. It also provides for the prevention, reporting, conciliation, mediation, arbitration, and adjudication of labour disputes.

The Labour Institutions Act, 2007

The Labour Institutions Act, 2007 is the law that establishes and regulates the labour institutions in Kenya. It provides for the functions, powers, and procedures of the labour institutions, such as the National Labour Board, the Industrial Court, the Labour Commissioner, the Wages Councils, the National Industrial Training Authority, and the Labour Advisory Board.

Some of the key sections of the Labour Institutions Act that address common workplace issues are:

Section 5: National Labour Board. This section establishes the National Labour Board as a tripartite body consisting of representatives of the government, employers, and employees. It also provides for the functions of the Board, such as advising the Minister on labour matters, reviewing labour legislation and policies, promoting social dialogue, and overseeing the implementation of international labour standards.
Section 12: Industrial Court. This section establishes the Industrial Court as a superior court of record with jurisdiction to hear and determine labour disputes, trade union disputes, and any other matter relating to employment and labour relations. It also provides for the composition, powers, and procedures of the Court, and the appeals from the Court.
Section 18: Labour Commissioner. This section establishes the office of the Labour Commissioner as the chief executive officer of the Department of Labour. It also provides for the functions of the Commissioner, such as enforcing labour laws, inspecting workplaces, registering trade unions and employers’ organizations, conciliating labour disputes, and collecting and disseminating labour statistics.
Section 41: Wages Councils. This section provides for the establishment, composition, and functions of Wages Councils, which are tripartite bodies that advise the Minister on the minimum wages and conditions of employment for various sectors, industries, or occupations. It also provides for the procedure and criteria for making and reviewing minimum wage orders.
Section 55: National Industrial Training Authority. This section establishes the National Industrial Training Authority as a body corporate that is responsible for the promotion, regulation, and coordination of industrial training in Kenya. It also provides for the functions, powers, and management of the Authority, and the levy and fund for industrial training.

Occupational Safety and Health Act, 2007

The Occupational Safety and Health Act, 2007 is the law that provides for the safety, health, and welfare of workers and other persons at work. It covers various aspects of occupational safety and health, such as general duties, risk assessment, safety committees, safety audits, safety and health officers, safety and health rules, hazardous substances, machinery and equipment, fire precautions, accidents and diseases, and penalties and compensation.

Some of the key sections of the Occupational Safety and Health Act that address common workplace issues are:

Section 6: General duties of employers to their employees. This section requires employers to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of all their employees. It also specifies some of the measures that employers must take, such as providing and maintaining a safe and healthy work environment, safe systems of work, adequate facilities and arrangements, information, instruction, training, and supervision, and protective clothing and equipment.
Section 7: General duties of employees at work. This section requires employees to take reasonable care for their own safety and health and that of other persons who may be affected by their acts or omissions at work. It also requires employees to cooperate with their employers and comply with the safety and health rules and procedures, report any hazards or accidents, and use the protective clothing and equipment provided.
Section 9: General duties of occupiers of workplaces to persons other than their employees. This section requires occupiers of workplaces to ensure, so far as is reasonably practicable, that the premises, plant, and substances are safe and without risks to the health of any person who has access to the premises or who is in the vicinity of the premises.
Section 11: Risk assessment. This section requires employers and self-employed persons to conduct a risk assessment of their work activities and to take appropriate measures to eliminate or minimize the risks identified. It also requires employers and self-employed persons to review and update their risk assessment periodically or whenever there is a change in the work conditions or activities.
Section 13: Safety and health committees. This section provides for the establishment, composition, and functions of safety and health committees at workplaces where there are 20 or more employees. It also provides for the election, nomination, and training of safety and health representatives who represent the employees on the safety and health committees.
Section 14: Safety audits. This section requires employers to conduct a safety audit of their workplaces at least once every year and to submit a report of the audit to the Director of Occupational Safety and Health Services. It also requires employers to implement the recommendations of the audit report within a reasonable time.
Section 15: Safety and health officers. This section provides for the appointment, powers, and duties of safety and health officers who are authorized by the Director of Occupational Safety and Health Services to inspect, investigate, and enforce the provisions of the Act and the regulations made under it.
Section 16: Safety and health rules. This section empowers the Minister to make safety and health rules for the prevention of accidents and diseases at work and for the protection of the safety, health, and welfare of workers and other persons at work. It also requires employers and employees to comply with the safety and health rules applicable to their workplaces and work activities.
Section 17: Hazardous substances. This section defines a hazardous substance as any substance that, by reason of its chemical or physico-chemical properties or handling, is liable to cause harm to human beings, whether by acute poisoning or long-term exposure, or to the environment. It also provides for the classification, labelling, packaging, handling, storage, transportation, and disposal of hazardous substances, and the duties of manufacturers, suppliers, importers, exporters, and users of hazardous substances.
Section 18: Machinery and equipment. This section provides for the design, construction, installation, operation, maintenance, inspection, testing, and repair of machinery and equipment used at work. It also provides for the guarding, fencing, and marking of machinery and equipment, and the use of personal protective equipment and devices.
Section 19: Fire precautions. This section requires employers to take adequate fire precautions at their workplaces, such as providing and maintaining fire-fighting equipment, fire alarms, fire exits, and fire drills. It also requires employers to appoint and train fire marshals and fire wardens who are responsible for the prevention and control of fire hazards and the evacuation of persons in case of fire.
Section 20: Accidents and diseases. This section requires employers to notify and report any accidents, dangerous occurrences, or occupational diseases that occur at their workplaces to the Director of Occupational Safety and Health Services and the Director of Medical Services. It also requires employers to keep records of such accidents, dangerous occurrences, or occupational diseases, and to conduct investigations and inquiries into their causes and circumstances.
Section 21: Penalties and compensation. This section provides for the penalties for contravening or failing to comply with the provisions of the Act or the regulations made under it, which may include fines, imprisonment, or both. It also provides for the compensation for any injury, loss, or damage suffered by any person as a result of any contravention or failure to comply with the provisions of the Act or the regulations made under it, which may be awarded by the Industrial Court or any other competent court.

The Work Injury Benefits Act, 2007

The Work Injury Benefits Act, 2007 is the law that provides for the compensation of workers for work-related injuries and diseases. It covers various aspects of work injury benefits, such as liability, assessment, payment, claims, medical aid, rehabilitation, and administration.

Some of the key sections of the Work Injury Benefits Act that address common workplace issues are:

Section 4: Liability for compensation. This section provides that every employer is liable to pay compensation to any employee who suffers personal injury or death by accident arising out of and in the course of employment, or who contracts an occupational disease. It also provides that the liability of the employer is independent of any negligence or fault on the part of the employer, employee, or any other person, and that the employer cannot contract out of or waive the liability.
Section 5: Assessment of compensation. This section provides for the assessment of the amount of compensation payable to an employee or a dependant of a deceased employee, based on the degree of disablement, the earnings, and the age of the employee. It also provides for the adjustment of the compensation in case of change of circumstances, and the payment of interest on delayed compensation.
Section 6: Payment of compensation. This section provides for the payment of compensation by the employer to the employee or the dependant of the deceased employee, either directly or through an insurance company. It also provides for the payment of compensation in instalments or lump sum, and the deduction of any benefits or payments received from other sources.
Section 7: Claims for compensation. This section provides for the procedure and time limit for making and processing claims for compensation by the employee or the dependant of the deceased employee, and the employer or the insurance company. It also provides for the settlement of disputes and appeals arising from the claims for compensation.
Section 8: Medical aid. This section provides for the provision of medical aid by the employer to the employee who suffers personal injury by accident arising out of and in the course of employment, or who contracts an occupational disease. It also provides for the reimbursement of the medical expenses incurred by the employee, and the referral of the employee to a medical practitioner or a medical board for examination and assessment.
Section 9: Rehabilitation. This section provides for the provision of rehabilitation by the employer to the employee who suffers personal injury by accident arising out of and in the course of employment, or who contracts an occupational disease. It also provides for the assessment of the rehabilitation needs and the rehabilitation plan of the employee, and the payment of rehabilitation allowance and expenses.
Section 10: Administration. This section provides for the administration of the work injury benefits by the Director of Work Injury Benefits, who is appointed by the Minister and who is responsible for the registration of employers and employees, the collection and management of the work injury benefits fund, the supervision and regulation of the insurance companies, and the enforcement and implementation of the provisions of the Act and the regulations made under it.

The Industrial Court Act, 2011

The Industrial Court Act, 2011 is the law that establishes and regulates the Industrial Court, which is a superior court of record with exclusive jurisdiction to hear and determine labour disputes, trade union disputes, and any other matter relating to employment and labour relations. It also provides for the composition, powers, and procedures of the Court, and the appeals from the Court.

Some of the key sections of the Industrial Court Act that address common workplace issues are:

Section 5: Jurisdiction of the Court. This section provides that the Court has exclusive jurisdiction to hear and determine all labour disputes, trade union disputes, and any other matter relating to employment and labour relations, including the interpretation and application of the Constitution, any written law, collective bargaining agreement, or contract of service in relation to employment and labour relations. It also provides that the Court has jurisdiction to grant any appropriate relief, such as declarations, injunctions, orders, awards, or compensation.
Section 6: Composition of the Court. This section provides that the Court consists of a Chief Judge, a Deputy Chief Judge, and such number of Judges as may be prescribed by law. It also provides that the Judges of the Court are appointed by the President in accordance with the Constitution and the Judicial Service Act, and that they must have the qualifications and experience in matters relating to employment and labour relations.
Section 7: Powers of the Court. This section provides that the Court has all the powers of a superior court of record and such other powers as may be conferred by the Constitution, the Industrial Court Act, or any other written law. It also provides that the Court may make rules of procedure, issue practice directions, appoint assessors and experts, and regulate its own process.
Section 8: Procedure of the Court. This section provides that the Court shall conduct its proceedings in accordance with the principles of fairness, equity, and justice, and that the Court shall not be bound by the technical rules of evidence or procedure. It also provides that the Court may adopt any procedure that it considers appropriate for the just and expeditious resolution of the matters before it, and that the Court may receive any evidence that it considers relevant and admissible.
Section 9: Appeals from the Court. This section provides that any party who is dissatisfied with the decision of the Court may appeal to the Court of Appeal on a point of law, and that the appeal shall be lodged within 30 days of the date of the decision. It also provides that the appeal shall not operate as a stay of execution of the decision, unless the Court or the Court of Appeal orders otherwise.

International Conventions and Treaties

International conventions and treaties are agreements between states or international organizations that establish rules and obligations on various matters of common interest or concern. Kenya is a party to several international conventions and treaties that relate to employment and labour relations, such as those adopted by the International Labour Organization (ILO), the African Union (AU), and the United Nations (UN).

Some of the key international conventions and treaties that address common workplace issues are:

ILO Convention No. 87: Freedom of Association and Protection of the Right to Organise Convention, 1948. This convention guarantees the right of workers and employers to form and join organizations of their own choosing, without any interference, coercion, or discrimination. It also protects the right of these organizations to function freely and independently, and to affiliate with national and international organizations of their choice.
ILO Convention No. 98: Right to Organise and Collective Bargaining Convention, 1949. This convention protects the right of workers and employers to organize and bargain collectively, without any interference, coercion, or discrimination. It also requires the states to take measures to promote and encourage collective bargaining, and to protect workers against acts of anti-union discrimination and victimization.
ILO Convention No. 100: Equal Remuneration Convention, 1951. This convention requires the states to ensure the application of the principle of equal remuneration for men and women workers for work of equal value, by means of national laws, collective agreements, or other appropriate means. It also requires the states to promote and review the objective appraisal of jobs on the basis of the work to be performed, and to eliminate any discrimination based on sex in the determination of remuneration.
ILO Convention No. 105: Abolition of Forced Labour Convention, 1957. This convention prohibits the use of any form of forced or compulsory labour, which is defined as work or service that is exacted from a person under the threat of any penalty and for which the person has not offered himself or herself voluntarily. It also requires the states to suppress and punish any use of forced or compulsory labour, and to take preventive measures to ensure its elimination.
ILO Convention No. 111: Discrimination (Employment and Occupation) Convention, 1958. This convention defines discrimination as any distinction, exclusion, or preference made on the basis of race, colour, sex, religion, political opinion, national extraction, or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. It also requires the states to declare and pursue a national policy designed to promote and ensure equality of opportunity and treatment in employment and occupation, and to eliminate any discrimination in this regard.
ILO Convention No. 138: Minimum Age Convention, 1973. This convention requires the states to pursue a national policy designed to ensure the effective abolition of child labour, and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons. It also requires the states to specify a minimum age for admission to employment or work, which shall not be less than the age of completion of compulsory schooling and, in any case, not less than 15 years, or 18 years for hazardous work.
ILO Convention No. 182: Worst Forms of Child Labour Convention, 1999. This convention defines the worst forms of child labour as: (a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom, and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; (b) the use, procuring, or offering of a child for prostitution, for the production of pornography, or for pornographic performances; (c) the use, procuring, or offering of a child for illicit activities, in particular for the production and trafficking of drugs; and (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety, or morals of children. It also requires the states to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.

AU Charter on Human and Peoples’ Rights, 1981. This charter is a regional instrument that protects and promotes the human and peoples’ rights in Africa. It covers various civil, political, economic, social, and cultural rights, such as the right to life, dignity, equality, liberty, fair trial, education, health, and work. It also establishes the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights as the organs responsible for monitoring and enforcing the charter.
UN International Covenant on Economic, Social and Cultural Rights, 1966. This covenant is a global instrument that recognizes and guarantees the economic, social, and cultural rights of all people. It covers various rights, such as the right to work, to fair and favourable conditions of work, to social security, to an adequate standard of living, to health, to education, and to participate in cultural life. It also establishes the Committee on Economic, Social and Cultural Rights as the organ responsible for monitoring and supervising the covenant.

The Constitution of Kenya, 2010

The Constitution of Kenya, 2010 is the supreme law of the land that establishes and defines the system of governance, the structure and organs of the state, the principles and values of the society, and the rights and duties of the citizens. It also provides for the amendment, interpretation, and enforcement of the constitution.

Some of the key provisions of the Constitution that address common workplace issues are:

Article 19: The Bill of Rights. This article provides that the Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic, and cultural policies. It also provides that the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.
Article 20: Application of the Bill of Rights. This article provides that the Bill of Rights applies to all state organs and all persons, and binds all persons acting in the name of the state or performing a function of a public nature. It also provides that the state and every state organ have an obligation to respect, protect, promote, and fulfil the rights and fundamental freedoms in the Bill of Rights.
Article 21: Implementation of the Bill of Rights. This article provides that it is a fundamental duty of the state and every state organ to observe, respect, protect, promote, and fulfil the rights and fundamental freedoms in the Bill of Rights. It also provides that the state shall take legislative, policy, and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed under the Bill of Rights.
Article 22: Enforcement of the Bill of Rights. This article provides that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or threatened. It also provides that the court may grant appropriate relief, including a declaration of rights, an injunction,