Why Pandemic Bill spells injustice to Kenyan employers

As the world marches on into the uncharted territory created by the Covid-19 pandemic, the dreaded monster continues to receive sporadic reactions from all the three arms of the Kenyan Government. While the executive, through the Presidency and Ministry of Health, keeps issuing one administrative directive after another to control the fast spread of the deadly virus, Parliament has been busy crafting ad hoc legislation to give legal effect to those directives. For its part, the shortest arm of Government has suspended operations indefinitely to the chagrin of the consumers of its essential services.

The rush to pass legislation to combat the pandemic is understandable. But the National Assembly and Senate appear to be outdoing each other in their zeal which has led to a near head-on collision between various bills addressing the same issues. This was dramatically illustrated last week in the recently enacted Tax Laws (Amendment) Act, 2020 which, at the very last minute, lifted some clauses from the Pandemic Response and Management Bill, 2020 (popularly known as the “Sakaja Bill”). Those clauses purported to amend the Employment Act to fix the challenges being experienced in the sector as a result of the pandemic.

While the Nairobi Senator’s pro-activity in developing and tabling the Bill is laudable, the impact of Covid-19 is so huge that a piece-meal approach will not fully address the myriad challenges currently bedevilling the employment sector.

As well intentioned as it is, the Sakaja Bill is literally attempting to bite more than it can chew. No wonder it devotes only a few lines in a single section to employment issues and deals, quite inadequately, with only three matters; termination, pay cuts and unpaid leave. Yet, there are many more issues that have been identified in the wake of Covid-19 which require a holistic legislative approach to cushion both employers and employees against needless, disruptive and expensive litigation which is bound to arise after the pandemic due to the inadequacy of the existing legal framework.

Some of these issues include whether the layoffs necessitated by a pandemic constitute a redundancy, force majeure or frustration; whether the normal protracted termination process also applies during a pandemic; whether statutory benefits like housing and medical should subsist during unpaid leave; employers’ health and safety obligations while employees are working from home; treatment of statutory deductions during unpaid leave; whether performance and disciplinary processes should be conducted during a pandemic; whether employers are liable for the death of employees whom they place at risk in the line of duty; whether employees who are not sick but on quarantine should be given sick or paid leave, among others.

Ideal approach

A better approach would be to develop a specific Bill dedicated to addressing the plethora of employment issues that have arisen, borrowing from the best practices across the world. This would provide Kenyan employers, employees and all stakeholders with an opportunity to raise and exhaustively discuss the challenges which they are facing to ensure that the solutions to be contained in the new law are as a comprehensive, practical and balanced as possible.

When the Sakaja Bill states that an employer shall not terminate the contract of an employee during a pandemic, this effectively provides a blanket protection for employees and freezes all manner of terminations including those that had been initiated on disciplinary grounds, poor performance or redundancy. Employees serving on fixed term contracts that are due for expiry during the pandemic could also seek refuge under such a provision.

On unpaid leave, the Bill employs very feeble language which is likely to result in ambiguous interpretations. Instead of categorically and boldly stating that in the event of a pandemic an employer shall be at liberty to require employees to proceed on unpaid leave until the end of the pandemic on such terms as shall be agreed between the parties, it prevaricates and simply provides that employers shall permit their employees to take a leave of absence without pay. The concept of permission by the employer presupposes a prior request or application by the employee. Therefore, unless an employee applies for unpaid leave, the employer’s hands will remain tied behind his back. There are no prizes for guessing how many employees will apply for unpaid leave.

The Bill does not fare any better either in addressing the sticky issue of pay cuts necessitated by the slump in business during the pandemic. The fact of the matter is that the pandemic has sapped the ability of most employers to meet the wage-bill agreed with the employees in happier times. At any rate, some employees, particularly those currently working from home, may not be working at full capacity and may, therefore, not deserve the same pay which was agreed based on the expectation of a full day’s work.

The Bill skirts around the matter by feebly providing that an employer shall not coerce an employee to accept a pay cut. This does not expressly grant the employer the right to initiate a reasonable pay cut if forced by the impact of the pandemic to do so.

Given the hierarchical relationship between employers and employees (a fact which courts have acknowledged), it will not be too difficult for an employee who has consensually accepted a pay cut to later allege that he was coerced by the employer to do so. Since the word of the employee traditionally carries more weight than that of the employer before the employment court, employers could end up being found liable for having implemented unlawful pay-cuts.

Just like the 9/11 terror attack irreversibly changed the way we travel, Covid-19 has changed forever the way we work. A winning strategy should involve the marshalling of a comprehensive legislative arsenal to address all the gaps laid bare by the devastation left behind by the enemy.

The piece-meal approach adopted in the Sakaja Bill is akin to cutting a mugumo tree with a razor blade.

Mr Maema is a Senior Partner at DLA Piper Africa, IKM Advocates.