Kenya, and the world at large, is currently dealing with the pandemic of COVID-19. The pandemic has disrupted the normal course of business leading to a negative impact on the economy. This will in turn adjust our longstanding interpretations of employment law that will pave the way to various strategies to ensure both the employers and employees' interests are protected.

Most employment contracts do not anticipate any cause of action to be taken on the occurrence of unforeseeable things as is in this case, the occurrence of a pandemic. Additionally, in some sectors such as the manufacturing industries it is impossible to have the employees work from home and the option of scaling down staff will lead to underproduction.

This brief analysis sets out possible options that can be explored by employers to cushion themselves from irrecoverable losses in the event that the pandemic renders them incapable to discharge their contractual obligations.

Working in shifts / Working from home.

Under Section 10 of the Employment Act of Kenya, a contract of service ought to state inter alia the place of work and the hours of work. The act under Section 27 states that an employee is entitled to one rest day in every seven days. It further obligates the employer to regulate the working hours of each employee according to the provisions of the Act. The normal working hours under Regulations 5 of the Regulation of Wages (General) Order consist of 52 hours spread over 6 days of the week.

Notwithstanding the provisions of the Act, the parties to an employment contract can agree that employees work in shifts or work from home. This is to reduce the number of people within the place of work and also allow employees to work from the safety of their homes in keeping with the directives from the Ministry of Health and Section 36 (m) of the Public Health Act.

However, in the event that such an arrangement would lead to a reduction of the employee's salary, it is imperative that the employer seeks the  employees consent before such a reduction.

You can read more of the article on the Wamae & Allen website by following the link .