You have just arrived home from your workplace, ready to rest for a while before you follow your routine for the rest of the day.
Then a call comes. It is your boss. Do you pick up the call or wait till the next day?
If you were in Australia or in tens of other countries around the globe, you could disregard that call without any consequences. That is because, earlier this week, Australia enacted a law on the right to disconnect.
However, as the rest of the world includes that right in its labour laws, Kenya is not on board.
A bill passed by the Senate in August 2023 that would add the right to disconnect into the Kenyan employment laws was trashed by the National Assembly in March 2024, with MPs terming it impractical.
It said: “An employee shall not be reprimanded, punished, or subjected to disciplinary action if the employee disregards work-related communication during out-of-work hours.”
Had the bill become law, employers who made such contact during after-work hours would be jailed for a year or pay a Sh500,000 fine or both. It stated that only in emergencies should employers be contacted after-hours.
But one MP remarked: “The bill does not explain how an employee can be contacted during an emergency because, immediately after work, the employee will have the right to switch off their phone.”
So, if you are in Kenya, you had better pick up that call. Or answer that email. Or key in a response on SMS or WhatsApp.
Following the coming into effect of the “right to disconnect” regulation in Australia, the debate on whether it is proper to be contacted after work has been reignited.
Nandi Senator Samson Cherargei, who sponsored the bill that would have added the right to disconnect into the Employment Act, did not immediately respond to a request from Business Daily on what he felt about the rejection of the proposal, when it moved to the National Assembly.
Mr Nicholas Odipo, the chairman of the Kenya National Union of Medical Laboratory Officers said Mr Cherargei’s bill should have seen the light of day.
“It is quite unfortunate that the bill did not pass,” said the trade unionist. “Workers have life to live outside work and the workplace.
"Therefore, once a worker leaves the workplace, he or she should be left to live his life to the fullest by not being bothered with work-related issues.”
“There’s a lot of labour exploitation in the country. Any consultation or any work done outside the normal working time should be treated as overtime, which most employers do not want to hear about.
"So, the bill could have cured this issue of an employee being called back to work during off hours or days,” added Mr Odipo.
When Mr Cherargei’s bill was before the senate, some of the opposing voices included the Federation of Kenya Employers (FKE), who said such matters should not feature on a blanket legislation.
“The changes, in our view, infringe on the employer’s right to manage the enterprise on a day-to-day basis,” said Ms Jacqueline Mugo, the FKE executive director. “To our knowledge, no union or employee has raised any concerns to warrant passing this law.”
However, Mr Odipo said there should be clear rules of engagement as employees are highly dispensable.
“You have seen how workers are immediately replaced when they die. Before burial, there’s already someone occupying your position.
"It simply means that you have a life to live other than that office desk. Therefore, the moment you are out of work, it should truly be that you are out of work,” he said.
Labour lawyer Sospeter Aming’a told Business Daily that according to Kenyan labour laws, any employee should work for a maximum of 48 hours a week.
“However, this can be varied by an individual’s employment contract provided that it does not exceed the set duration. The provided time can be spread within the week, depending on the nature of one’s work,” said Mr Aming’a, the managing partner at Nairobi-based Simiyu, Opondo, Kiranga and Company Advocates.
The lawyer said calls and consultations outside of the working hours should be considered overtime work.
“In absence of any written contract to the contrary, overtime shall be remunerated at the minimum rate of one and a half (1.5) times of the normal hourly rate, if the overtime is on the normal working days, and at two times the hourly rate where the overtime is worked on gazetted public holidays,” said Mr Aming’a.
The right to disconnect gained prominence during the working-from-home arrangements that were necessitated by the Covid-19 pandemic.
“Employees started complaining that their employers understood working from home to mean that the employee was available at any time to work,” lawyer William Maema wrote in the Business Daily in April 2023.
“Whereas compensation for overtime is already provided for in law, to avoid disputes over the same, at the point of engagement, an employer and employee should ensure that the terms are clearly spelt out in the contract so that where there is extra time needed to deliver work, the same is sufficiently and fairly remunerated,” he said.
When such matters go to court, the lawyer said, judges and magistrates award overtime dues depending on the contract entered.
As things stand, “working round the clock” means just that for employees in a country like Kenya, where the right to disconnect is not granted.
A study in the US State of California around the right to disconnect, which involved 800 employees and 200 business executives, found out that 83 per cent of employees supported having that right. Nine percent felt neutral while eight per cent were opposed.
“Though three in four business executives support the bill, they’re 75 percent more likely than employees to oppose it,” added the study by US-based firm Clarify Capital.
According to the BBC, more than 20 countries – mainly in Europe and Latin America – have regulations on the right to disconnect.
Regarding the Australian legislation, the BBC reports: “The law does not ban employers from contacting workers after hours. Instead, it gives staff the right not to reply unless their refusal is deemed unreasonable.”
