Employment Act

This Act may be cited as the Employment Act.

Provides definitions of terms used in the Act (e.g. "authorised officer", "child", "employee", "employer").

Section 3 sets out who the Act applies to (employees under a contract of service), lists several excluded services and categories, binds the Government, allows the Cabinet Secretary (after consulting the National Labour Board and considering international instruments) to exclude limited categories by order, permits exclusion of categories governed by special arrangements provided those arrangements give equivalent or better protection, and declares the Act's terms to be minimum terms of employment with any agreement to relinquish them void.

No person shall use or assist another in recruiting, trafficking or using forced labour.

Employers must promote equal opportunity, eliminate discrimination in employment policies and practices, pay equal remuneration for work of equal value, and employers who contravene the section commit an offence; in proceedings the employer bears the burden of proof.

Section 6 defines sexual harassment and requires employers with twenty or more employees to issue a sexual-harassment policy after consulting employees; employers must prevent sexual harassment, discipline offenders, provide complaint procedures, and keep complainants' identities confidential except when disclosure is necessary for investigation or discipline; employees are entitled to employment free from sexual harassment.

The employer must provide the written employment particulars specified in subsection (1), which may be given in instalments, and must give them not later than two months after the start of employment.

Requires that where specified particulars are absent they be stated as absent; allows a statement under section 10 to refer employees to other accessible documents or the law/collective agreements for certain particulars; requires particulars from section 10(2) and (3) to be in a single document; and sets timing for giving the statement to employees who will work outside Kenya for over one month.

Employers must provide employees with disciplinary rules or accessible documents setting out those rules, explain grievance redress and application procedure, and explain subsequent steps; exceptions cover health and safety matters and employers with fewer than fifty employees when the employee starts work.

If, after the material date, any particulars required under sections 10 and 12 change, the employer must give the employee a written statement with particulars of the change.

The employee is entitled to reasonable opportunities to read a reasonably accessible document or collective agreement during the course of employment.

An employer must display, in a conspicuous and accessible place, a prescribed-form statement of employees' rights under this Act.

If an employer does not give required statements, the employee may file a complaint with the labour officer; the court can determine missing particulars and the employer will be deemed to have given the corrected statement; failure to give the statement is an offence punishable by a fine or imprisonment; the court may order remedies.

No person may be employed under a 'contract of service' except in accordance with the provisions of this Act.

The provisions of this Act shall apply to oral and written contracts.

Employers must prepare written contracts of service with particulars and employee consent; employees must sign or thumbprint; employers must explain contracts when the employee is illiterate or does not understand the language; employers generally must not require clearance certificates unless intending to hire, but may request mandatory clearances in compliance with chapter six and may withdraw offers if requirements not met; applicants for state office must provide certificates when required.

Section 17 requires employers to pay employees their wages on working days during working hours at or near the workplace (or another agreed place), prohibits certain conditioned advances and limitations on disposal of wages, limits recoverability of excessive advances, and protects some employee wage claims from court attachments up to six months' wages.

Section 18 sets when wages or salaries are payable and includes employer duties on payment and reporting after dismissal, and an employee entitlement to be paid on completion of certain tasks.

Section 19 lists specific situations where an employer may deduct amounts from an employee's wages, caps total deductions at two thirds of wages (subject to Cabinet Secretary prescription), forbids deductions as an advance in consideration of employment, requires remittance of certain deducted amounts in accordance with specified instruments, and prescribes penalties for failure to remit.

An employer must give a written itemised pay statement to an employee at or before payment, stating gross pay, specified deductions (subject to section 22) and, where parts are paid differently, the amount and method of each part-payment.

The employer must give the employee, at or before the time the pay statement is given, a statement of statutory deductions specified in subsection (2).

Power to vary the particulars which must be included in a pay statement or a statement of statutory deductions by adding, removing or amending items listed in sections 20 and 21.

Foreign (non‑incorporated or non‑resident) employers may be required by the Cabinet Secretary to pay a bond equal to one month's wages for employees; the Cabinet Secretary must hold such bonds in a separate interest‑bearing account and may only use them to pay wages and entitlements if the employer defaults.

When an employee dies or is killed/incapacitated, the employer must notify the labour officer or district commissioner, pay or deliver wages and property as required, provide evidence of payment, and report killings/incapacitations; legal representatives may be paid within 30 days upon proof.

Employers who contravene Part IV must repay any remuneration wrongfully withheld or deducted from an employee and commit an offence punishable by a fine up to one hundred thousand shillings or imprisonment up to two years or both.

Employers must keep the employee records listed in Section 74(1)(a)–(m) and must allow an authorised officer to inspect records for the preceding thirty-six months; employers of children who keep the register required by section 61 with the particulars in subsection (1) are deemed to have complied.

A person who makes or allows a knowingly false entry in required registers or who produces a document known to be false to an authorised officer commits an offence and on conviction may be fined up to one hundred thousand shillings or imprisoned up to six months or both.

This Part and Part VI set out the basic minimum terms and conditions of a contract of service; where other laws, agreements, regulations or court orders provide more favourable terms, those favourable terms apply to the employee.

Employers must regulate employees' working hours according to this Act; employees are entitled to at least one rest day in every period of seven days.

Sets minimum annual leave entitlements and rules for taking and dividing leave.

Female employees are entitled to three months' maternity leave with full pay and to return to their prior or a suitably equivalent job; they must give at least seven days' written notice (or a shorter reasonable period) and may be required to produce a medical certificate. Male employees are entitled to two weeks' paternity leave with full pay.

An employee who will have a child placed in their care under section 157 of the Children Act is entitled to one month's pre-adoptive leave with full pay from the placement date; the employee must notify the employer in writing at least fourteen days before placement and must accompany that notice with documentation (custody agreement and exit certificate).

Employees are entitled to sick leave (minimum seven days full pay, then seven days half pay per 12 months) after two months' service, subject to a medical certificate; employees must notify employers promptly to get full pay; employers may set an annual anniversary cycle.

Employers must at their own expense provide reasonable housing for each employee at or near the workplace or pay a sufficient sum as rent to enable the employee to obtain reasonable accommodation.

Section 31A has been deleted by Act No. 20 of 2020.

Section 31B has been repealed.

Section 31C was repealed.

An employer must provide a sufficient supply of wholesome water for employees at the workplace and, where applicable, within a reasonable distance of employer-provided housing.

If providing food was agreed when hiring, an employer must feed the employee and provide cooking utensils and means of cooking at the employer's expense.

Employers must provide sufficient and proper medicine for employees during illness and, if possible, medical attendance for serious illness; they must take reasonable steps to be notified promptly of employee illness. Employers have a defence to prosecution if they did not know and took reasonable steps, and subsections (4)(a)–(c) list further exceptions.

Sets termination notice periods depending on pay intervals, requires oral explanation of notice if employee cannot understand it, allows dispute of termination and termination without notice for causes recognised by law, and entitles employees terminated under the one-month-or-more rule to service pay.

Either party to a contract of service (to which section 35(5) applies) may end the contract without notice if they pay the other party the remuneration that would have been earned or paid for the notice period.

Section 37 sets rules for when casual employment converts to a term contract, entitles certain casual employees to paid rest days and to terms of service after conversion, allows the Employment and Labour Relations Court to vary terms, and permits aggrieved casual employees to file complaints with a labour officer.

If an employee gives notice and the employer waives all or part of that notice, the employer must pay the employee remuneration equal to the period of notice not served, unless they agree otherwise.

An employer may extend a contract that expires while an employee is on a journey for up to one month so the employee can complete the journey.

When making redundancies the employer must notify the union and labour officer (if employee is in a union) or notify the employee in writing and the labour officer (if not), must consider seniority and skill in selecting staff, must pay leave in cash, at least one month's notice or wages in lieu, and severance of at least fifteen days' pay per completed year; subsection (1) does not apply in cases of insolvency and the Cabinet Secretary may make rules requiring employers to insure against redundancy.

Before terminating an employee for misconduct, poor performance or physical incapacity, an employer must explain the reason in a language the employee understands and the employee is entitled to have another employee or a shop floor union representative present; the employer must also hear and consider any representations the employee (or the person chosen under subsection (1)) makes before termination or summary dismissal under section 44(3) or (4).

Employers must not keep employees on probationary contracts beyond the total maximum probation period; parties to a probationary contract may end it with at least seven days' notice or by the employer paying seven days' wages instead of notice.

Employers must prove the reason(s) for terminating a contract; if they fail to prove them the termination is deemed unfair.

Employers may summarily dismiss an employee for a fundamental breach of the contract of service (examples at (4)(a)–(g)), but otherwise an employer must not terminate without notice or give less notice than the employee is entitled to by statute or contract.

Employers must not terminate an employee unfairly; employees with at least thirteen months' continuous service have the right to complain of unfair termination.

Text references a female employee and mentions pregnancy or reasons connected with her pregnancy in the context of termination or discipline.

Employees who are summarily dismissed or unfairly terminated may, within three months, present a complaint to a labour officer; the employee bears the burden of proving unfair termination while the employer must justify the termination; probationary employees whose services were terminated may not complain under this section; employees keep the right to complain to the Employment and Labour Relations Court.

Advocates are prohibited from representing a party before a labour officer in complaints under section 47; any party may instead be assisted or represented by an official of a trade union or an employer's organisation, even if that official is an advocate.

Provides remedies for wrongful dismissal including payment of wages, proportional pay for uncompleted service, compensation up to 12 months' wages, reinstatement or re-engagement options, and that payments by the employer are subject to statutory deductions.

When deciding wrongful dismissal or unfair termination cases, the Employment and Labour Relations Court must be guided by section 49.

Employers must give a departing employee a certificate of service (unless employment lasted less than four consecutive weeks) listing specified particulars; employers are not required to provide testimonials; wilful or negligent failure or false statements are an offence punishable by fine or imprisonment.

Defines "employment" of a child (a person under eighteen) to include situations where the child's labour is provided as an assistant and counted as another's labour for payment, is used for gain by any person or institution, or there is a contract for service where the service provider is a child.

No person must employ a child under eighteen in activities that are worst forms of child labour; the Cabinet Secretary must make regulations (with the National Labour Board) declaring work harmful to children's health, safety or morals.

Allows any person to complain to a labour officer or inspector-grade police officer about a child employed in the worst forms of child labour; requires the labour officer or police to investigate and report within seven days or to inform in writing if not investigating; such employment is a cognisable offence punishable under section 64, with no double punishment.

Labour officers may cancel child employment contracts and prohibit persons from employing children; notices must be personally served; affected parties may appeal to the Employment and Labour Relations Court within thirty days; employing a child after a notice not set aside is an offence, but continuing employment during the appeal period or with a court stay is permitted.

No person must not employ a child under thirteen; conditions limit employment of children aged thirteen to sixteen and the Cabinet Secretary may make rules prescribing light work and terms for such employment.

It is an offence for a person to employ or allow to be employed a child aged between thirteen and sixteen under a written contract (employment must be under a verbal contract except for specified apprenticeship/learnerships); conviction may lead to a fine up to 100,000 shillings or imprisonment up to six months or both.

No person must employ a child aged between thirteen and sixteen in an industrial undertaking to attend to machinery, except apprentices or indentured learners; and no person must employ a child in opencast or sub-surface workings entered by shaft or adit.

Prohibits employing a child in an industrial undertaking between 6.30 p.m. and 6.30 a.m., subject to section 60; allows employment of male young persons in unforeseen emergencies and allows the Cabinet Secretary to authorise night work for young persons under conditions.

The Cabinet Secretary may, by notice in the Gazette, suspend the operation of section 59 in case of a serious emergency when the public interest demands it.

Employers must keep a register of child employment listing age and date of birth; date of entry and leaving employment; and other prescribed particulars, and must maintain the register in accordance with the Data Protection Act (Cap. 411C).

An authorised officer may require a child employee to be medically examined.

When a person's age is in dispute in a charge under the Act, the court hearing the charge must determine that person's age (and that determination is final). If there is insufficient evidence about an employee's age, a medical officer may estimate it and that estimate is deemed the true age until proved otherwise.

Employing, engaging or using a child under 18 in contravention of this Part is an offence; using a child in worst form child labour carries a penalty on conviction of a fine not exceeding 200,000 shillings or imprisonment up to 12 months or both; it is a defence if the accused genuinely believed the child was above 18.

If a child is killed, dies or suffers bodily injury because an employer contravened this Part, the employer is liable to a fine of up to five hundred thousand shillings or to imprisonment for up to twelve months or both; the fine or part of it may be applied for the benefit of the injured child or family or otherwise as the Cabinet Secretary may direct.

Defines "employer" and "employee" and states that the employer of an employee has become insolvent.

Defines insolvency to include being adjudged bankrupt or having made a composition or arrangement with his creditors.

This Part applies to arrears of wages for one or more months, but not exceeding six months or part thereof.

Limits amounts payable under section 68 to either ten thousand shillings or one half of monthly remuneration (whichever is greater) per month, with proportional amounts for shorter periods; the Cabinet Secretary may vary that limit on the advice of the National Labour Board by Order in the Gazette.

A relevant officer must provide the Cabinet Secretary a statement of the employee's unpaid debt on request; the Cabinet Secretary must not pay under section 66 until that statement is received, but may pay without it if satisfied the statement is unnecessary.

Allows a complaint to the Employment and Labour Relations Court alleging that the Cabinet Secretary failed to make a payment or underpaid; the complaint must be made within three months of communication of the Secretary’s decision, or within a further period the Court considers reasonable; the Court may make an award and declare the amount payable by the Cabinet Secretary.

When the Cabinet Secretary pays (in full or in part) an employee's debt, the employee's rights and remedies in respect of that debt transfer to the Cabinet Secretary; such transferred rights include preferential status and priority over other creditors, and recovered sums must be paid into the National Social Security Fund.

The Cabinet Secretary may require employers or custodians of records to provide information or produce documents by notice; refusal, wilful neglect, or false statements are offences punishable by a fine not exceeding one hundred thousand shillings or imprisonment up to six months or both.

Employers with twenty-five or more employees must notify specified vacancy details when creating a post, engaging an employee, or abolishing a post after termination.

If a post that was notified to the Director as vacant is filled, or is abolished before being filled, the employer must notify the employment service office in writing within two weeks of the filling or abolition.

An employer must notify in writing the termination of employment or any lay-off to the nearest employment service office within two weeks.

Employers must keep a register of employees, record specified personal and employment details for each employee, and submit an annual return to the Director by 31 January following the year.

The Cabinet Secretary may exempt categories of employers, sectors or industries from this Part or vary the limit of its application under section 76(1).

An employer who contravenes any provision of this Part commits an offence and on conviction may be fined up to one hundred thousand shillings or imprisoned for up to six months or both.

A foreign contract of service must be in the prescribed form, signed by the parties, and attested by a labour officer.

Before attestation, the consent of the employee to the contract must have been obtained.

If an employer under a foreign contract of service does not reside or carry on business in Kenya the employer must give a security bond with Kenyan resident sureties; if the employer resides in Kenya a labour officer may require such a bond; where there is an authorised agent resident in Kenya the Cabinet Secretary may require the agent to give the bond and the agent shall be personally bound.

Makes it an offence to induce a person to proceed outside Kenya under an informal contract.

Only the Employment and Labour Relations Court may determine complaints or suits under subsection (1); other courts shall not determine them.

If a person (other than a child) commits an offence under this Act or contravenes its provisions for which no specific penalty is provided, they are liable to a fine up to fifty thousand shillings, or imprisonment up to three months, or both; employers and employees may also be proceeded against under other laws; and no employer or employee shall be punished twice for the same offence.

Employers and employees may enforce rights under contracts of service made outside Kenya; contracts made in a foreign country must be attested by a judge or magistrate and authenticated by the court seal.

Civil actions under this Act or arising from a contract of service must be commenced within three years of the act, neglect or default complained of, or if injury or damage is continuing, within twelve months after the cessation of that injury or damage.

Section 90 authorises rules that set workplace requirements—covering housing, feeding, medical care, books and returns, working hours and breaks, holidays, supervision, casual employment, employment of women, young persons and children, age limits for child employment, information from employers of children, employment cards, certificates of service particulars, and notices to be displayed.