Author: Fortunatus Otieno - HR Specialist

A Performance Improvement Plan (PIP) is a structured system or tool used to progressively and consistently monitor the performance of employees who are below expectations to address their unsatisfactory performance. It is also used to protect employers against unfair dismissal claims.

Plans for performance improvement are regularly suggested as a result of performance appraisals. As a result, if an employer thinks that, after a performance review process, there is a gap between an employee’s actual performance and the expected level of performance, it should document performance difficulties and proceed to place the employee on PIP. Employers who do not manage employee performance, particularly through appraisals, lack the moral authority to inform employees that they have underperformed.

Before conducting any disciplinary proceedings related to performance issues, an employer must provide evidence such as performance appraisals, written warning letters, and performance improvement plans to substantiate allegations of poor performance.

The establishment and use of PIPs are not provided for in any legislation. The time limit in which PIP should operate is not laid down.

Courts in Kenya have underlined some conditions that must be met for PIPs to be valid and enforceable. These include:

• Explain the unsatisfactory performance and what needs to be improved.
• Give clear targets and specify the desired performance in terms of either quality or quantity.
• Create an action plan that adheres to the SMART principles. PIP durations are either 90, 120, or 180 days and the period can be extended if the targets are not achieved.
• Describe the tools at the employee’s disposal to help them achieve their goals, such as coaching or training.
• Permit a periodic, objective review of performance, and inform the employee how their performance will be monitored.
• Explain to the employee that further disciplinary action will be taken if the expected performance is not achieved.

 

The following indicators could point to an unjust PIP:

• If you have a good track performance
• Unclear targets
• Poor relationship with your supervisor

Every meeting and communication that took place during the PIP should be documented by the employer. These documents are essential proof of whether the PIP process was successful or not. Employees should receive regular performance reviews from their employers, and the records should be kept and shared with them.

 

Service pay is payable upon the termination of a contract of service. The law does not specify the terms of service pay therefore this definition is reserved for contracts, internal policies or collective bargaining agreements. This payment is however not payable if an employer is registered in a pension scheme recognized by the Retirement Benefit Authority. NSSF is recognised as such a scheme. This then exempts most employers from making this payment. See section 35 (5) Section 35 (6) of the Employment Act.

Gratuity is a gift. There is no requirement in law for any employer to make any gratuitous payments. However, there are employers who provide for gratuity payment whether in their contracts, internal agreements and or collective bargaining agreements. Where such provisions exist, the employer then is bound by their internal documents that have provided for gratuity to make the payment as per their policy.

Severance pay is only payable in the event a redundancy has been declared. There is no other way of contract termination that has a legal requirement for payment of severance pay other than in cases of redundancy. The Employment Act in section 40 provides that at a minimum, upon the declaration of a redundancy an employer should pay severance pay at the rate of fifteen (15) days pay for every completed year of service. In addition, courts have ruled in favour of prorating this payment for years of service that one has worked but not completed. An employer is allowed to make a more enhanced provision here but cannot pay below the legal minimum.

The investigative documentary that was aired recently by BBC Africa Eye, titled “Sex for Work: The True Cost of Our Tea,” has revealed the degree of sexual harassment that takes place in work places. While the vice is abominable, the white-collar space is not spared either, with recurring stories of such incidences in media and other forums.

It behoves every person to take active steps to curb the situation.

Sexual harassment is defined in Black’s Law Dictionary, Tenth Edition as “a type of employment discrimination consisting in verbal or physical abuse of a sexual nature, including lewd remarks, salacious looks and unwelcome touching”.

Section 6 of the Employment Act defines sexual harassment as where an employer or a representative of the employer or a co-worker:

(a)  directly or indirectly requests an employee for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express

(i)  promise of preferential treatment in employment; (ii) threat of detrimental treatment in employment; or (iii) threat about the present or future employment status of the employee;

(b) uses language whether written or spoken of a sexual nature;

(c) uses visual material of a sexual nature; or

(d)  shows physical behaviour of a sexual nature which directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee and that by its nature has a detrimental effect on that employee’s employment, job performance, or job satisfaction.

This definition, though broad, is very guiding on what would constitute sexual harassment in a workplace.

In addition, the same law requires that an employer with 20 or more employees to consult with the employees or their representatives if any, and to issue a policy statement on sexual harassment. Such a workplace policy should include among other matters a definition of sexual harassment; a statement that every employee is entitled to employment that is free of sexual harassment; a statement that the employer should take steps to ensure that no employee is subjected to sexual harassment; and a statement that the employer shall take disciplinary measures as they deem appropriate against any person who subjects any employee to sexual harassment. In addition to having a sexual harassment policy, the employer must ensure that the policy is implemented. Employers should and train their employees on the parameters of the policy as held in the case of Lydiah Mongina Mokaya versus St. Leornard’s Maternity Nursing Home Limited [2018] eKLR

Morrison J in Reed v Stedman (1999) IRLR 299 held that a characteristic of sexual harassment is that it undermines the victim’s dignity at work and constitutes a detriment on the grounds of sex, and that the lack of intent is not a defence.

It is the duty of the employer to protect all employees as held in the case of J W N versus Securex Agencies (K) Limited [2018] eKLR that;

The Court has also considered section 6(2) of the Act which imposed upon the respondent the duty, after consulting the employees or their representatives, to issue a policy statement on sexual harassment. Under section 6(3) such policy statement was to provide for definition of sexual harassment as provided for in the Act; employee entitlement to employment free from sexual harassment; steps taken to prevent sexual harassment; explain how to make or report to the employer complaints of sexual harassment; and non-disclosure of the complainant except for purposes of disciplinary process or investigating complaints.

Where a case of sexual harassment takes place, the employee is required to make out a prima facie case that there was sexual harassment at the work pursuant to section 47(5) of the Act and once this evidential burden is discharged the onus is on the employer to prove that there was no such conduct of sexual harassment and that there is a workplace policy which defines sexual harassment and employees are aware and can apply it to address any acts of sexual harassment against them at the workplace.

In the case of Lydiah Mongina Mokaya versus St. Leornard’s Maternity Nursing Home Limited [2018] eKLR the court in addressing an issue of sexual harassment of the employee at the shop floor held that;

Cases and instances of sexual harassment are extremely personalized and difficult to proof. More often than not, these would not be documented but comprise of overt and covert overtures by the offending party. It is therefore expected that when this arises, action should be taken towards reporting or raising the same with the powers that be, the employer or his agents. Sometimes the prevailing environment may not be facilitative of this. It would therefore be unreasonable to employ the standard burden of proof on this kind of matters. This is like in the present case.

Lack of proper systems to address the vice can be costly as was in the case of G M V versus Bank of Africa Kenya Limited [2013] eKLR where an award of ksh.500,000 was given.

“Redundancy” means the loss of employment, occupation, job or career by involuntary means through no fault of an employee, involving termination of employment at the initiative of the employer, where the services of an employee are superfluous and the practices commonly known as abolition of office, job or occupation and loss of employment. (Employment Act, Section 2)

 Reasons for redundancy;

Reduction of workforce, close of business, mergers, acquisitions, operational requirements (occasioned by changes in business environment, legal framework, technology etc.)

Process of redundancy;

Notification to employee, labor office and trade union

1. Where the employee is a member of a trade union, the employer should notify the union concerned and the labor officer in charge of the area of the reasons for, and the extent of the intended redundancy not less than a month prior to the date of the intended date of termination on account of redundancy.
2. Where an employee is not a member of a trade union, the employer should notify the employee(s) personally in writing and the labor officer. The above communication is done through notice of intention to restructure letter.

Acknowledgement by labor office – The labor office shall acknowledge receipt by stamping a copy of the letter. They retain a copy of the letter while the employer retains another copy.

Termination on account of redundancy

Upon expiry of the 30 days’ notice as explained above, the employer may write to the employee termination letter on account of redundancy. The employer may give 1-month notice or pay 1 months’ salary in lieu of notice.

 Payment of terminal dues is as follows;

1. Payment of 1 months’ salary. (only in lieu of notice)
2. Payment of a minimum of 15 days’ salary for each year worked (severance pay)
3. Payment of accrued leave days not taken
4. Payment of any other dues applicable to the employee according to company policy.

Note: To identify whether the client has a redundancy policy in place.

Legal Steps to be followed.

2.0      Mandatory Conditions

The Employment Act 2007 (hereinafter “the Act”) sets out the following mandatory conditions to be fulfilled by an employer before effecting a redundancy:

1. Where the employees are unionised, the trade union and the local labour officer should be notified of the reasons for, and the extent of, the intended redundancy. This notice should be issued not less than a month prior to the date of the intended date of termination on account of redundancy.
2. An employer is also required to notify an employee in writing of the intended redundancy, this should be a mere proposal.  This notification should be given to the employee at least one month prior to the effective date of the redundancy and can be given to the employee at the same time that the labour office notification is being sent out.
3. The law requires that in selecting the employees to be declared redundant, an employer should have due regard to seniority in time (last in first out principle) and to the skill, ability and reliability of each employee in the category of employees affected.
4. Where leave is due to an employee declared redundant, the employer is required to pay off the employee in cash for the leave accrued but not taken.
5. An employer is required to pay the employee declared redundant severance pay at a minimum rate of not less than 15 days pay for each completed year of service.

2.1      Where an employee’s contract of employment or the company’s HR Policy/Manual provides for a procedure, benefits and/or payment over and above what is set out in the law as above, the employer has to ensure compliance with the same.

2.2      Applicable Procedure

Our Employment and Labour Relations Courts have held that an employer should consult with an employee and the union before effecting a redundancy.  This is intended to prepare the employee for the inevitable loss of employment and to mitigate against the harsh effects of the redundancy.  In this regard, consultations with staff members are mandatory before a final decision is made and/or communicated to them.

2.3      In the case of: Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers (KUDHEIHA) v Aga Khan University Hospital Nairobi [2015] eKLR (attached herewith), the court held as follows with regard to consultations:

The employer must invite the Claimant to negotiations and or consultations with an open mind as it were… As rightly noted by the Court of Appeal above cited, consultations should not be a charade. I will add, consultations should not be a means to justify an end or an end in itself. It should entail a process towards achieving a goal. Consultation should be held so as to achieve industrial peace and ensure fair labour relations… As noted above, redundancy is a process – once notice is issued, consultations follow, identification of issues is done, if such require re-organisation of employees such is addressed; where such reorganisation may require certain position be removed, a criteria is set out and where possible terminations are inevitable they are identified, and based on the pre-set criteria, affected employees are served with termination notices and the guidelines for the issuance of such notice is set out in law.” Unfortunately our Courts have not set out the mechanics or modalities for consultations.

 2.4   We set out the mandatory steps to be followed in this process as follows:

Step 1:

1. We suggest that the initial general notice should be sent to all the employees.  To our knowledge the company does not have unionisable employees and therefore no notice is required.  This notice should be sent out as a mere proposal (for example using the terminology “proposed redundancy” will make this clear), and not as the notification of the termination of employment.  This notice should explain the reasons for and the extent of the proposed
2. The County labour officer should also be notified of the reasons for and the extent of the proposed redundancy.
3. The notice period should not be less than one month

Step 2:

1. Within the one month period as set out in step 1 above, the employees (and the union, where applicable) should be invited to engage in consultations. The Court has indicated that at this stage, the employer should explain to the employees the circumstances in which the proposal has been made.  We propose that the first meeting should be held with all the employees, setting out the criteria and extent of the  proposed redundancy. As the process narrows down to the affected department and the employees likely to be impacted, we propose that the next consultation should be held with the individual employees. The idea is to assist the employees understand the basis of the proposal and to give them an opportuno9ity to make representations and/or raise concerns.  In effect, the company should explain the reason and the extent of the proposed redundancy as well as the criteria that will be applied in selecting the employee(s) to be declared redundant. The law provides that the “last in, first out” principle which takes into account the years of service of an employee should be applied as part of the selection criteria.  Other considerations such as the skill, ability and reliability of the employee can also be taken into account. Please bear in mind that the company must be able to prove its selection criteria.
2. The company is required to give the employees a reasonable opportunity to constructively engage and the employees should be encouraged to express their views. In addition, it is required to consider any alternative proposals arising in the course of these discussions while bearing in mind that redundancy should be undertaken as a last resort.
3. The consultations should also include individual sessions with each employee to give them an opportunity to express any views and/or concerns that they would like addressed at a personal level.
4. The discussions should be documented and minutes taken and signed.  For group and individual sessions attendance should be recorded.
5. In certain instances, employers have gone as far as to arrange for a third party counsellor or adviser to meet with the employees to assist them plan their finances and/or provide psychological counselling and support. The idea is to show that the decision was implemented reasonably and fairly with due concern of the effect of the redundancy upon the employees.
6. During the consultation period, the company should consider whether there are any alternative employment positions that can be taken up by the employees likely to be affected.  The courts have held that in considering alternative positions, this can be either at the place of employment or where practicable in sister companies, subsidiaries or related organisations.

Step 3:

After the consultation period is at an end, if no viable alternative to the proposed redundancy is found the company can then proceed to announce its intention to declare redundancies.  it will then proceed to issue the affected employees with a written notice.  This notice will confirm the decision of the company identifying the employee’s position for abolition and indicate the effective date of the redundancy.  The effective date should not be less than one month from the date of this notice.

At the same time, a separate notice should be sent to the county labour office.  This notice will confirm the company’s intention to declare redundancies and the rationale for this decision.  It should state the name and positions of the affected employees.  In effect, the reasons, extent and criteria should be reflected.

Note that these notices should be issued not less than one month prior to the effective date of the redundancy.

Finally, an employer is required to issue an employee with a certificate of service upon termination. The certificate should contain the name of the employer and its postal address, the name of the employee, the date when the employment of the employee commenced, the nature and usual place of employment of the employee and the date when the employment of the employee ceased. The employer is however not bound to give the employee a testimonial, reference or certificate relating to the character or performance of that employee.

2.5 Based on the foregoing, the entire redundancy process will take a minimum of two months.

It is important to take minutes at every meeting that is held and record attendance.  Where possible, do a mapping for selection of the employees and for any redeployment.  This is so that if the objectivity of the process is challenged, you will be in a position to justify the same.

2.6 If an employer does not follow due process as set out above and/or if the grounds giving rise to the redundancy are successfully challenged, the court could make a determination that the redundancy was unlawful.

As a consequence, the employee could be reinstated and/or awarded damages at a maximum equivalent of 12 months’ salary.

 

A comprehensive human resource policy handbook is a collection of policies, procedures, and expectations for employees of any organization. It aims to provide a framework for making consistent decisions and promoting equity in the way that people are treated.

Some of the synonyms for Human Resource Policy and Procedures Manual include:

• Staff Policy Handbook
• Employee Handbook
• Staff Policy Manual
• Human Resource Policy Manual

Policy manuals are developed to help staff and management teams run the organization. Policies play a strategic role in an organization. They are developed in light of the mission and objectives of the company and they become the media by which management’s plans, rules, intents, and business processes become documented and communicated to all staff. Carefully drafted and standardized policies and procedures save the company countless hours of management time. The consistent use and interpretation of such policies, in an evenhanded and fair manner, reduces management’s concern about legal issues becoming legal problems.

Some of the essential policies to be captured in the manual include but are not limited to:

• Recruitment and Selection policy
• Performance Management policy
• Leave policy
• Training & Development policy
• Code of Conduct
• Disciplinary and Grievance Handling policy
• Health & Safety policy
• Sexual Harassment policy
• HIV/AIDs policy
• Separation policy

The HR policies and procedures manual serve as the required sources of information to be followed to resolve any issues that may arise from either the employer’s or the employee’s perspective. This information is available for employees to use to familiarize themselves with organizational policies and practices on various topics, such as how leaves are sanctioned, various allowances, grievance procedures, etc. The HR manual should contain all such data, pertaining to the employment of the employees, in complete detail to ensure that employees can obtain all the required information in time.

The HR policies and procedures handbook should be written with the highest objectivity and clarity to ensure that the documents are uniform in approach, free of any complexity, and clear of any overlap. This is crucial to prevent any form of differential treatment from the company and to guarantee efficient and conflict-free internal operations.

Organizations can hire an HR Consulting Firm for the development of the HR manual. The HR Consultant can assist the organization in the:

• Preparing a new HR policies and procedures manual for the organization
• Revise certain aspects of the document or completely revise the HR policies and procedures manual
• Check the documents for the ever-changing legal rules and regulations, and make the necessary changes
• Audit the existing HR policies and procedures manual to make sure that the given details provided are relevant to the current industry

While developing or reviewing an HR policies and procedures manual, an HR Consultant should keep in mind the following important factors:

• Organizational culture
• Legal rules and regulations
• Market trends
• HR policies and procedures manual of the organization
• Existing rules and regulations related to the employees in the organization
• Legal compliances
• Industry norms

An HR Consultant, on the call from the organization, may also guide and train the employees in implementing and complying with the policies and procedures.