Why proposed right to disconnect is bad labour legislation

If Nandi Senator Samson Cherargei has his way, it will soon become illegal in Kenya for employers to as much as send a text message to an employee on a work-related issue outside working hours.

The declared purpose of his Employment (Amendment) Bill 2022 is to provide employees with the right to disconnect from their employers and assure them of personal time and privacy.

The Federation of Kenyan Employers has reacted with incredulity to this legislative proposal, seen by many employers as the proverbial killing of a fly with a sledgehammer.

The Bill requires employers to create a policy specifying the circumstances under which they may contact employees outside working hours, situations in which the right to disconnect may be waived and the compensation payable to employees who work remotely outside working hours.

The right to disconnect is defined in the proposed law as an employee’s entitlement not to be contacted by the employer outside of working hours. An employee who has exercised such a right will not be reprimanded, risk termination of their employment or be subjected to any disciplinary action.

The Bill provides that the employee will not be obliged to respond when contacted by the employer outside working hours and if they do respond, they would be entitled to compensation.

Any employer who fails to comply with the proposed law will be liable to a maximum fine of Sh500,000 or imprisonment for one year or both.

The proposed law was inspired by the lessons learnt from the remote working concept thrust upon the world by Covid-19 restrictions. Suddenly, remote working became the hottest invention after sliced bread. Soon enough, however, it spawned a myriad of hitherto unknown challenges, the main one being a frontal attack on the cherished concept of work-life balance, which is very popular among the younger generation.

Courtesy of a few slave drivers, employees started complaining that their employers understood working from home to mean that the employee was available at any time of the day and night to take and complete work assignments.

In some cases, this brought about family-related challenges and employee burnout.

Some countries reacted to the new challenge by enacting legislation to allow employees to avoid contact with their employers except during the defined working hours.

Several European countries including France, Italy, Belgium, Spain and Portugal enacted such laws. Outside Europe, only the Province of Ontario in Canada has enacted the legislation.

Therefore, while the idea of using legislation to protect employees against the adverse effects of remote working and the unreasonable behaviour of some overly demanding employers is not new, it has not been embraced by many nations globally.

If the Senate enacts the proposed law, Kenya will become the only African country and indeed the first in the whole of the Southern Hemisphere to have such a law.

This unique statistic begs the question of whether we have explored the full implications of the proposed legislation and its appropriateness to an economy such as ours.

The proponents of the right to disconnect argue that the dramatic shift from the physical to the digital workspace has made employees permanently accessible to their supervisors who have failed to draw or see the line between official and personal time.

While this oppressive behaviour is to be condemned and discouraged, it does not require new legislation to regulate since the existing law already contains sufficient provisions.

The Employment Act already prescribes the maximum working hours and overtime payable. It criminalises servitude or forced labour.

Despite their past skepticism and aversion to remote working and flexible working models, most Kenyan employers have accepted that employees, particularly the senior cadres, are generally responsible and capable of working optimally without physical supervision. 

On the flip side, employees who work remotely are generally in charge of their own time and often divide it between performing personal chores and official assignments.

Remote workers openly spend official working hours performing personal chores on the understanding that they will compensate by working at other hours, mainly at night or weekends, to ensure that all the day’s deliverables are met.

Since the line between working hours and personal time has been blurred by the reality of remote working, it is inevitable that the employer will need to contact the employee on work-related issues at all reasonable hours without undue restriction.

It would be unfair for the law to protect indolent employees who misuse their employer’s time performing personal chores, doing private jobs, studying online courses or even working for other employers, thereby creating a backlog of overdue assignments and missed deadlines.  

It is probably fair to say that the concept of what was traditionally known as official working hours has virtually disappeared

Imposing more restrictions on already overburdened employers is hardly a smart way to revive an economy on life support.

Maema is a senior partner in the law firm DLA Piper Africa, Kenya. Email: [email protected]