Amendments to the Employment Act, 2007
The Employment Act, 2007 (the Act) has recently been amended twice. The Employment (Amendment) Act, 2021 has amended the Act to include provisions for pre- adoptive leave, whereas the Employment (Amendment) Act, No. 15 of 2022 has amended the Act to eliminate the requirement for a prospective employee to submit clearance or compliance certificates to a prospective employee. The amendments are discussed in detail below.
The Employment (Amendment) Act, 2021
On 30th March 2021, the President signed into law the Employment (Amendment) Act, 2021 which has amended certain provisions of the Act.
Section 29A has been inserted which entitles employees to one (1) month pre-adoptive leave with full pay where a child is placed in the continuous care and control of the said employee, from the date of placement of the child.
An employee eligible for pre-adoptive leave shall be required to:
- notify the employer in writing of the adoption society’s intention to place the child in their custody at least fourteen (14) days before the placement of the child; and
- accompany the written notice in (a) above with documentation evidencing the intention of the adoption society to place the child in their custody (including the custody agreement between the employee and the adoption society and an exit certificate).
It is prudent for an employee to communicate with the adoption society to enable an employee to apply for pre-adoptive leave at the right time.
The Employment (Amendment) Act, No. 15 of 2022
On 4th April 2022, the Act was further amended when the Employment (Amendment) Act, No. 15 of 2022 was assented into law.
Consequently, an employer shall not require a prospective employee to submit any clearance or compliance certificate unless the employer intends to enter into a contract of service with the employee. The clearance certificates include a certificate of good conduct obtained from the Director of Criminal Investigations, a certificate from Ethics and Corruption Commission, a certificate from the Kenya Revenue Authority, a certificate from Credit Reference Bureau and further, a certificate from the Higher Education Loans Board (the Clearance or Compliance Certificates).
An employer may request the relevant Clearance or Compliance Certificates from prospective employees only upon granting them an offer of employment. An employer is at liberty to rescind an offer of employment where the prospective employee is unable provide the necessary Clearance or Compliance Certificates. In addition, the amendment allows an employer to withdraw an offer if the candidate does satisfy the requirements set out in Chapter Six of the Constitution on Leadership and Integrity.
Chapter Six of the Constitution has commonly only been applied in respect of public entities. This means private sector employers may now require clearance from relevant entities to satisfy themselves of the integrity of candidates.
This means that the Act now elevates integrity and ethics to the forefront of recruitment. It can be inferred from this amendment, that if a prospective employee fails the integrity and ethics test following review of the relevant Clearance or Compliance Certificates then the employer will have a right to rescind the job offer.
There is need for employers to review their employment policies and contracts to reflect these amendments to the Employment Act, 2007.
If you have any queries relating to these amendments to the Employment Act, 2007 or any aspect of employment law, please do not hesitate to contact James Wairoto at jwairoto@mwc.legal. Please note that this e-alert is meant for general information only and should not be relied upon without seeking specific subject matter legal advice.
