Can labour officials seize records from your office?

Those who have yielded to this demand are forced to transport volumes of all kinds of records to the offices.

Labour inspections are supposed to be carried out in the employer’s premises to ensure safety of the documents.

Where a labour official has to carry the records to their office, he has a legal obligation to issue a certificate detailing all the documents he has taken.

The circumstances under which employment records may be taken away by such officials are clear.

There has to be an offence committed under the laws, and the records must be deemed to contain evidence or be themselves proof of the alleged wrongdoing, to be so seized.

The Labour Institutions Act, 2007, provides for this under section 35, subsection 1 (g).

The authorised official may take the records for keeping as exhibits should charges be preferred against an employer.

Ordinarily, inspection of the documents should be carried out within the organisation being inspected.

The processes to be followed to undertake this task are contained in various sections in Part V of the Labour Institutions Act, 2007.

My advice is that employers should familiarise themselves with this part of the Act to understand matters concerning labour administration and inspection.

I will now discuss the key issues. First, it is true that labour officials have the responsibility to inspect employment records in the workplace for purposes of enforcing the law.

The director of employment and the director of medical services also have the same powers of inspection.

They are public officials charged with this mandate.

Employers should request the labour official or any other authorised person to produce their authority cards before accessing the employer’s premises to inspect the records.

Thus, the labour official will be authorised by the commissioner of labour; the employment official by the director of employment; and the medical official by the director of medical services respectively.

The certificate of authority is for identification and authorisation to enter, inspect and examine employment records at premises at reasonable times.

When these public officials appear before you, ask them to identify themselves and to show you a valid certificate.

The law supports the employer on this, under Section 33(2) of the Labour Institutions Act.

It states: “When performing duties under this Act, an authorised officer, if reasonably requested to do so by any person affected, shall produce his certificate of appointment to that person.”

You can deny them access if they do not have these documents.

But once they produce them, you are obligated to give them access to the records requested.

The records that these officials would be interested in are diverse.

They are provided for under sections 10, 13, 21, 22, 27, 28, 29, 30, and 61 of the Employment Act, among others that are applicable to specific employers.

Section 10 covers employment particulars that should be included in a contract of service.

They are many and it would be useful to refer to the section to ensure your records compare favourably with the legal requirements.

Section 13 provides for the documentation of any changes associated with employment particulars.

The law requires that any changes in this respect are communicated to the affected parties.

The officials could also be interested in records regarding statutory deductions and any amendments as provided for under Sections 21 and 22, or in details concerning hours of work (Section 27), and annual, maternity, and sick leave (sections 28, 29, and 30).

Also, they may decide to go through the “registers of children in employment” as provided for under Section 61 of the Employment Act.

There are situations in which employers buy and distribute food to employees and make deductions from their salaries to recover the costs.

Records on such schemes must be filed.

Keep written record

In accordance with Section 74 of the Employment Act, 2007.

“An employer shall keep a written record of all employees employed by him, with whom he has entered into a contract under this Act, which shall contain the particulars,” provided under the various sections as already outlined.

Under Section 75 of the Act, false entry may result in imprisonment or a fine.

According to this section, any person found to have deliberately made a false entry into any of the records as provided for in the Act can be fined up to Sh100,000 or sentenced to imprisonment for a term not exceeding six months, or both, when convicted.

To avoid this kind of punishment, employers should keep records required by the law and for the period defined; three years for employees in service, five years for work injury records, and five years after termination of service.

Mugo is the executive director of the Federation of Kenya Employers.