FAQ

If you have a social media policy that includes what acceptable online behavior is, then you may
DISCIPLINE an employee that goes against the policy. However, employees have a right to privacy as
well as freedom of expression. It would be a violation of the employee’s rights if they were to be
disciplined for merely expressing their opinions on general matters that affect them at the
workplace.

If you make an express request for them to work overtime, then yes. If your employee simply has
work that spilled over from their regular work hours and they chose to remain and complete it, you
do not have to pay overtime.
According to the employment act, an employer must give the worker 24 hours’ notice for overtime
requests. A worker cannot be forced to work overtime and should be adequately compensated for
any overtime work.
Overtime pay is one and a half times the worker’s normal hourly rate for any time worked over the
normal working hours. If the overtime is on the worker’s normal rest day or public holiday, overtime
pay is twice the normal hourly rate. If the worker is not employed by the hour, the basic hourly rate is
deemed to be one-two hundred and twenty-fifths (1/225) of the employee’s monthly wage.
A worker cannot be asked to work more than one hundred and sixteen (116) hours in any
consecutive two-week period. For night workers, it should not exceed one hundred and forty-four
(144) hours for two consecutive weeks. An employer can offer time off in place of overtime pay if the
worker agrees in writing.

You are not required to offer additional medical insurance to your employees except the National
Hospital Insurance Fund cover which is a statutory requirement. However, section 34 of the
Employment Act requires that an employer shall ensure the sufficient provision of proper medicine
for employees during illness and if possible, medical attendance during serious illness

Often, a former employee’s potential employers will reach out for a background check. It is not illegal
to provide details about the employee’s performance where it is related to the role they are applying
for.
However, it is not required by law to give any information or reference to a former employee except
the certificate of service which should contain the following;
i. the name of the employer and his postal address;
ii. the name of the employee;
iii. the date when employment of the employee commenced;
iv. the nature and usual place of employment of the employee;
v. the date when the employment of the employee ceased.

If a worker damages/loses goods or money at the workplace, the employer may deduct the value of
the lost goods or money from the worker’s wages.
The employment act however limits the amount deducted to two thirds of the employee’s salary. If
you choose to recover losses, ensure to remain in that threshold
But isn’t that double jeopardy?
The law prohibits an employer from using the same facts to discipline an employee. For example, if
you caught your employee stealing, and you chose to deduct their wages and retain them, then you
may not use the incident in future as a justification for further disciplinary action.
While the rule against double jeopardy prevents double punishment, it would be unreasonable for
an employer to retain an employee that has caused losses to the company through gross negligence,
theft or embezzlement. It is therefore okay to terminate an employee and recover losses from their
final dues.

It is the Employer’s duty to ensure that their employees go on leave.
An employee’s unwillingness to go on leave does not mean they are not entitled to go on leave. An
employer may instruct an employee to take their leave days, or the employer and employee may
enter into an agreement as to how leave days will be taken.
Leave days can only be forfeited by an employee in writing or upon the expiry of a six-month period
after the end of a 12-month period during which an employee has leave days carried over.

If your company has over 20 employees, then it is mandatory to issue a policy statement on sexual
harassment after consultation with the employees or their representatives.
It is the employer’s duty to ensure that employees are familiar with the policy statement.
The policy statement should have the following:
(a) The definition of sexual harassment
(b) A statement: –
i. That every employee is entitled to employment that is free of sexual harassment;

ii. That the employer shall take steps to ensure that no employee is subjected to sexual
harassment;
iii. That the employer shall take such disciplinary measures as the employer deems appropriate
against any person under the employer’s direction, who subjects any employee to sexual
harassment;
iv. Explaining how complaints of sexual harassment may be brought to the attention of the
employer; and
v. That the employer will not disclose the name of a complainant or the circumstances related
to the complaint to any person except where disclosure is necessary for the purpose of
investigating the complaint or taking disciplinary measures in relation thereto.

Severance pay is payment made to employees whose positions have been declared redundant and is
a requirement by law once the position has been declared redundant.
Service pay is made to long serving employees of a company depending on the number of years
served and the company’s policies. It is important to note that as the law stands currently, service
pay is entirely at the discretion of the employer.
The similarity is that they are both calculated with the same formula i.e. 15days salary multiplied by
the number of years worked.
It is important to note that as the law stands currently, service pay is entirely at the discretion of the
employer.

The Employment and Labor Relations court in Sosphiter Abdalla Kisanya Vs Intex Construction co. LTD
[2018] eKLR held that an employer who fails to manage the performance of their staff lacks the
moral authority to tell the staff they have underperformed. This shows the importance of
performance management.
If you do not have a performance management policy, begin by creating one that is simple, uses clear
language and is to the point. Train your supervisors on the process and emphasize on the importance
of giving regular and honest feedback to their juniors throughout as opposed to waiting for the
appraisal dates.
All employees should be properly briefed on the Performance Tracking process and they should be
fully aware of the expectations of their roles in terms of deliverables(KPIs). Include a period after
which appraisals will be done. Make sure to include a dispute resolution process and be clear on how
poor performance will be handled.
Finally, ensure you get feedback from your employees regarding the process to ensure that the
process is indeed yielding results and to make necessary adjustments.