Over the years, a common trend has emerged in the employment sphere with respect to appointment of individuals to various positions in an acting capacity.
This development has mostly manifested itself within government agencies, parastatals and ministries. Such instances arise either out of the office bearer retiring from active public service, or removal of the incumbent on account of integrity and corruption related issues among other intervening circumstances.
Labour Law, being the Employment Act enacted in 2007, considerably changed the course of labour law in various material respects, particularly by greatly enhancing the rights of employees.
However, the power of appointment is essentially discretionary, especially when it is a political and administrative decision – meaning that courts of law cannot control or dictate it.
However Section 37 of the Employment Act, No. 11 of 2007 recognise the concept of “Appointment of an Employee in an Acting Capacity”.
But while the section explicitly outlines the circumstances under which a casual employment is considered employment under a contract of service, it fails to address the issues of employment in an acting capacity especially for how long one serves acting capacity pending confirmation.
Wages (General) Order (Legal Notice No. 139 of 1967) addresses pay of those serving in acting capacity but only applies to employees on a minimum wage.
It says an employee shall be paid an acting allowance at a rate of not less than the difference between the higher basic minimum wage and their basic salary where an employee is required to work for a period of not less than one month in an occupation or grade for which the prescribed minimum wage is higher than the basic salary earned by the said employee.
Section 34  of the Public Service Commission Act, No. 10 of 2017 is more authoritative to the effect that public officers can only serve in acting capacity for a period of one month, and up to a maximum period of six months.
The provisions of the Act provides that a public officer appointed in an acting capacity shall be duly qualified and competent to perform the duty at hand not undermine the expeditious appointment of a competent person to the public office concerned.
The crucial question is how long should an employee be employed in an acting capacity?
There are no clear legal provisions as to the maximum period during which an employee can occupy a position in an acting capacity.
However, courts have held that such period ought to be a reasonable one to avoid an instance whereby an individual who has been employed in an acting capacity does not hold a legitimate expectation to be officially confirmed for that position.
More importantly is that a prolonged period of appointment of an employee in an acting capacity without being given the substantive appointment or relieved of their role in the said acting capacity amounts to discrimination and unfair labour practices on the part of the employer contrary to the provisions of Article 41 of the Constitution of Kenya, 2010 as read together with Section 5 of the Employment Act.
Although the recent trend of appointment of employees in an acting capacity in both government agencies and private institutions has been widely accepted across all spheres, it is important for Parliament to amend the current Employment & Labour Laws to incorporate the regulation of such acts in order to safeguard the rights and freedoms of employees enshrined under the provisions of Article 41 of the Constitution of Kenya, 2010.
Wilberforce Akello, Partner & Head of Litigation, Robson Harris.