The Right to Disconnect

The Right to Disconnect

An Employees’ Right to Disconnect

The Employment (Amendment) Bill, 2021 seeks to amend the Employment Act, 2007 (the Act) to introduce an employee’s right to disconnect from their employment duties outside of the employee’s contractual working hours. This right has been explicitly referred to in the Bill as the entitlement bestowed upon an employee not to be contacted by an employer during out of work hours as per the Employer’s policy.

The right to disconnect means a worker’s right to be able to disengage from work and refrain from engaging in work-related electronic communications, such as emails or other messages, during non-work hours.

Clause 27A (2) of the Bill allows the employer to contact the employees outside of working hours if “such contact is necessary for the purpose of addressing an emergency.”

The Bill obligates an employer who has more than ten (10) employees to work in conjunction with employees and trade unions to develop a policy on the employee’s right to disconnect. The policy shall outline the exceptions to the right to disconnect, as well as the circumstances under which the right may be waived.

Under Clause 27 A(7)(b), an employee is not obliged to respond to an employer’s communication outside of working hours, and if the employee opts to respond, the employee is entitled to compensation. If an employee chooses to not respond to a work-related communication outside of the employee’s contractual working hours, the employer cannot reprimand, punish, or subject the employee to disciplinary action.

The Bill exempts essential service providers who are specified under section 81 of the Labour Relations Act, 2007 (the LRA) from the right to disconnect. Essential service has been explicitly referred to as a service the interruption of which would probably endanger the life of a person or health of the population or any part of the population. The fourth schedule to the Act provides for a list of essential services to include Water Supply Services, Hospital Services, Air Traffic Control Services and Civil Aviation Telecommunication Services, Fire Services of the Government or Public Institutions, Posts Authority and Local Government Authorities and Ferry Services.

The intention of the Bill is to enhance the work-life balance of employees in this post-pandemic remote working era and address the increased employee burnout. The Bill seeks to strike a balance between work and private life to allow digital technology to have a positive effect on workers’ quality of life supported by employers.

If the Bill is passed, employers may need to revise employment contracts to clearly state the agreed working hours if the contracts currently do not provide for the same, as well as amend their internal policies and practices. In addition, where an employee’s contracts require employees to work outside normal working hours (including weekends and public holidays), the contract must specifically state that the employees will be remunerated for the additional hours worked.

The right to disconnect originated from France when the government passed the El Khomri Law which provided for this right and its implementation. This right introduced changes in the working conditions for the better for the working class of France. Other nations that this right has been introduced include Canada, Philippines, Belgium, Germany, Ecuador and Italy. The International Labour Organisation(the ILO) pursuant to the right to disconnect produced a report titled Working from home: From Invisibility to decent work. Commenting on this right, the ILO stated that it is an important policy measure to limit working time and ensure respect for the boundaries between work life and private life. The ILO encourages governments to take guidance of Convention No. 177, the Home Work Convention,1996  and Recommendation No. 184, the Home Work Recommendation, 1996  in implementing the right to disconnect. To our knowledge, Kenya is yet to ratify this convention.

If you have any queries relating to the above the right to disconnect or any aspect of employment law, please do not hesitate to contact James Wairoto. 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.

By: James Wairoto and Moses Ogutu

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