EMPLOYEE CONTRACTS BY MR. JAMES O. OKEYO Partner & Head of Litigation Department Muthoga Gaturu & Company Advocates

EMPLOYMENT ACT 2007…Continued A contract of employment or service means an agreement whether oral or written, expressed or implied, to employ or to serve as an employee for a period of time, and this includes a contract of apprenticeship and indentured leadership but does not include a foreign contract of service. A contract of employment or service means an agreement whether oral or written, expressed or implied, to employ or to serve as an employee for a period of time, and this includes a contract of apprenticeship and indentured leadership but does not include a foreign contract of service. EMPLOYMENT ACT 2007…Continued A contract of employment an agreement whether oral or written expressed or implied, to employ or to serve as an employee for a period of time, and this includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service.

EMPLOYMENT ACT 2007…Continued They’re Governed by general law of contract and principles of common law. Mainly governed by Employment Act

EMPLOYMENT ACT 2007…Continued different types of contracts There are mainly four types;- A contract for an unspecified period of time Contract for specified period of time Contract for a specific task (piecework employment Contract for casual employment -written statement of the particulars of the main terms of the contract of employment (Employment Act, S 10).

EMPLOYMENT ACT 2007…Continued oral contracts -are permissible -in case of any legal proceedings the burden of proving or disproving an alleged term of employment falls on the employer (section 10 (7)).

EMPLOYMENT ACT 2007…Continued 1.Section 5 (3)-Prohibits discrimination on various grounds. the Act  provides that  no employer shall discriminate, directly or indirectly, against any employee or prospective employee or harass an employee or prospective employee on the ground of race, colour, race, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental or HIV status or in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matter  arising out of the employment.

EMPLOYMENT ACT 2007 2. Section 6 of the Act outlaws all forms of sexual harassment at places of works. This provision require every employer to take steps to ensure that no employee is subjected to sexual harassment of any form and take disciplinary measures as deemed appropriate against any of his employees who subjects another employee to sexual harassment.  Further, under subsection (2) thereof, an employer who employs twenty (20) or more employees should in consultation with the employees or their representatives, if any, issue a policy statement on sexual harassment, which shall be brought to the attention of every person under the employer’s direction.

METHODS OF JOB ANALYSIS Contd… Section 7 of the Employment Act provides that “no person shall be employed under a contract of services except in accordance with the provisions of the Act”. Section 8 goes ahead to provide that the provisions of the Employment Act apply to both oral and written contracts of employment.

EMPLOYMENT ACT 2007…Continued Under section 9 of the Act, a contract of service (a) for a period or a number of working days which amount in aggregate to the equivalent of three (3) months or more, or which provides for the performance of any specified work which cannot reasonably be expected to be completed within a period or a number of working days amounting in aggregate to the equivalent of three (3) months; must be writing. 

EMPLOYMENT ACT 2007…Continued Under section 10(1) of the Employment Act, a written contract of service specified under clause 9 above, shall state the particulars of employment, which may, subject to section 10(3) of the Act,  be given in instalments and in any event not less than two (2) months after the beginning of employment. 

EMPLOYMENT ACT 2007…Continued a  written contract of service  shall contain the following particulars or details: a. the name, age, permanent address and sex of the employee; (b)  the name of the employer; (c)  job description of the employment; (d)  the date of commencement of the employment; (e) form and duration of the contract; (f)  the place of work;

EMPLOYMENT ACT 2007…Continued (g) the hours of work; (h) remuneration scale or rate of employment, the method of calculation of that remuneration and details of any other benefit; (i) date on which employee’s period of continuous employment began, taking into account any employment with a previous employer which counts toward that period; and (j) any other prescribed matter.

EMPLOYMENT ACT 2007…Continued Please not that under section 10(5), where any of the matters highlighted above changes, the employer shall in consultation with the employee, revise the contract to reflect such changes and notify the employee of the change in writing. Further, under section 10(6) of the Act, the employer shall be required to keep records of the above particularly for a period of at least 5 years after the termination of employment.

EMPLOYMENT ACT 2007…Continued Under section 15 of the Employment Act, an employer shall display a statement in the prescribed form of the employee’s rights under the Act in a conspicuous place, which is accessible to all employees.

EMPLOYMENT ACT 2007…Continued Under section 17 (6) of the Act, if any employer advances to an employee a loan in  excess of the amount of one (1) month’s his wages, or in case of an employee with written contract, two (2) months’ wages,  the excess shall not be recoverable in a court of law.  This section therefore implies that if an employer advances any loan to an employee, the employers shall be obliged to take a separate security from the employee to secure the repayment. 

EMPLOYMENT ACT 2007…Continued Under section 20 of the Act , an employer shall be required to give every employee (except a casual employee or an employee engaged on piece rate or task rate terms of any period not exceeding 6 months) an itemised pay statement either at or before the time of payment of the salaries and wages.  At the minimum, such statement should contain the following particulars:- (a)    the gross amount of the wages or salary of the employee (b)   itemised statutory deductions; and (c)    net pay

EMPLOYMENT ACT 2007…Continued The annual leave is twenty one (21) days with full pay after every twelve (12)  consecutive months of service . Where employment is terminated after the completion of two (2) or more consecutive months of service, the employee is entitled to one and three-quarter (1 ¾ ) days of leave with full pay in respect of each completed month of service.

EMPLOYMENT ACT 2007…Continued Under section 30 of the Employment Act, after two (2) consecutive months of service with his employer, an employee shall be entitled to sick leave of not less than seven (7) days with full pay and thereafter to sick leave of seven (7)  days with half pay, in each period of twelve (12)  consecutive month of service, subject to the production by the employee of a certificate of incapacity to worked signed by a duly certified medical practitioner.