KENYA ON A MISSION TO SET HEFTY PENALTY FOR ARBITRARY TRANSFER OF EMPLOYEES BY EMPLOYERS

Review of the Employment (Amendment) Bill, 2023

On 7^th November 2023, the National Assembly received and gazetted via Kenya Gazette supplement number 186, the Employment (Amendment) Bill number 62 of 2023. The principal object of this bill is to amend the provisions of the Employment Act, 2007 to regulate the transfer of employees by employers from one place of work to another. This bill has been informed by the arbitrary transfer of employees by employer to the detriment of employees thus contravening article 41 of the Constitution on fair labour practice. The bill thus seeks to provide clarity on the modalities of transferring employees in good faith and in a fair manner that will benefit both the employer and the employee and eliminate the use of transfers by employers to punish employees.

Below are some of the proposed amendments in the bill:

Definition of transfer and the criteria to be fulfilled by the employer

The Bill defines transfer as the deployment of an employee from one duty station to another and provides that an employee may be transferred to another place of work at their own request or at the employer’s demand subject to the employer fulfilling below conditions:

1. The employer must give the employee the reason(s) for the intended transfer;
2. The employer must inform the employee the implications of the transfer to the employee’s contract of service;
3. The employer must notify the employee of the measures that the employer envisages shall be taken in relation to the employee if any;
4. The employer must seek consent of the employee before effecting the transfer; and
5. Where applicable, facilitate the employee to move to the new place of work by providing reasonable transport for the movement of the employee and his/her personal effects or proving a salary advance to enable the employee to move and which advance would be recovered in reasonable instalments.

Of importance to note is that the facilitation by the employer is not applicable where the transfer is at the request of the employee.

The bill further proposes that in effecting such transfers the employer shall take into account:

1. The requirement for compliance with its transfer policies;
2. The interests of the employer;
3. The duration of the transfer whether permanent or temporary;
4. The length and frequency of the transfer;
5. The skills and competency of the employee;
6. The interest of the employee in terms of promotion, sickness and other extenuating factors;
7. The effectiveness and efficiency of the work of the employee;
8. The requirement that the transfer shall not be arbitrary; and
9. The requirement that the transfer is not used to punish the employee.

The bill also proposes that unless it is considered necessary, an employee who is the subject of disciplinary proceedings shall not be transferred until such proceedings are concluded and all mechanisms for an appeal under the Constitution or any other written law have been exhausted.

It is also important to note that under the bill, any transfer of an employee shall not break the continuity of the period of employment or terminate or vary the contract of service of any employee. And all employers will be required to develop a transfer policy for their employees.

Lastly this bill proposes a penalty for employers who fails to comply with its provisions by imposing a fine not exceeding Kshs. 500,000.00 for juristic persons and a fine not exceeding Kshs. 500,000.00 or imprisonment for a term of not more than 12 months for natural persons.

As at the date of this insight, the bill is on the 1^st Reading stage in the National assembly, and we undertake to keep you posted on its progress.

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