The road to hell is paved with good intentions. The Employment (Amendment) Bill 2021 is navigating a treacherous path to creating an employment hell in the workplace.
Many years ago, at the turn of this century, I had a very hard-working boss. The gentleman would get to work at about 6 a.m. in the morning as he lived way out in the sticks.
By 6:05 a.m. he would get cracking on his desktop computer (laptops were reserved only for the cherished few who travelled outside the country) and furiously shoot out emails to his team.
Having cleaned out his pending email inbox, he would then send a follow-up email by 7:15 a.m. He’d walk to the coffee dispenser, get himself a cup of the Kamiti Prison standard caffeine slop that the machine would spit out and proceed to sip it slowly, awaiting the little envelope icon that would appear at the top of his computer screen to signify a new email had come in.
Of course, nothing would come in as there was no one in the office. At 8 a.m. he would then send a second follow-up email, prickly asking why there was no response.
Suffice it to say that by the time we would get to the office we would find several messages from our boss ranging from polite “Where are we at with this?” to the more pointed “Why aren’t you responding to me?!”
I chuckle at this memory because if it was in today’s age, he would quite likely have been shooting us emails at all hours of God’s given 24 hours and expecting a response to be forthcoming immediately.
But a quiet word from the HR manager, followed by the stinging indictment of poor employee satisfaction survey results from his team would have reined in this behaviour.
Hence the Employment Amendment Bill of 2021 is trying to legislate against rogue bosses who don’t have internal guard rails such as a respectful work-life balance culture.
It starts off by shooting its intentions straight from the hip saying an employee has the right to disconnect from their employer.
The Bill requires yet another policy in the Byzantine world of employment policies to define when such disconnection is waived and how employers will engage with their employees outside of working hours.
The Bill’s author proposes that anyone with 10 or more employees must put in place a policy to define what disconnection looks like.
Simply put circumstances under which an employer may contact an employee, how electronic devices will be used to relay information outside of work hours and when that right to disconnect may be waived.
An employer should also define what kind of compensation will be given to employees who work outside official working hours.
This is fairly prescriptive legislation. In this modern age of work, working under time pressures created by statutory or client deadlines is fairly common.
Ask any suppliers of auditing, advertising, legal, accounting and a myriad of other white-collar professional services. Or employees in the Ministry of Finance working under constant pressure to deliver on budget deadlines and other time-critical government monetary disbursements.
It’s virtually impossible to envisage and document when such circumstances will arise. What’s worse is that the Bill seeks to criminalise out-of-work communication by making the employer liable to a prison term of one year, a fine of Sh500,000 or both.
Consequently, employers in the suggested policy will simply include vague language like “An employer may communicate to an employee regarding any critical work that arises in the ordinary course of duty from time to time.”
Contracts of employment may now perhaps include words like “Working hours are from 8 a.m. to 5 p.m. and, in addition, may extend beyond that period from time to time depending on the nature of work assigned to the employee.”
As a contract presupposes two willing parties, I highly doubt an employee is in a position to demand that such wording as “from time to time” be removed from the employment contract.
It is the Bill’s recommendation that if an employer contacts the employee, she shall not be obliged to respond and shall have the right to disconnect or may respond and be entitled to get compensation.
Contracts and policies notwithstanding, it is fallacious to expect that the employee who reports their employer for refusing them to disconnect from work, and the law takes its punitive imprisonment form, will survive for long in that workplace or any future workplaces for that matter.
There are many ingenious ways to manage that employee out of work as clearly performance issues are now at play here.
The Bill is targeting white-collar professionals and unfortunately would appear to be fairly elitist as it fails to address the working conditions of thousands of domestic workers in our homes who work from dawn to evening, many of whom are grossly underpaid and massively overworked.
That is truly where employment hell resides.