Introduction
The Employment Act, 2007 [hereinafter “the Act”] and the Regulation of Wages (General) Order, 1982 and its successive amendments in Kenya set out a framework of statutory minimum benefits that employers are legally obliged to provide to their employees. These provisions are designed to protect employees’ rights, ensure fair treatment, and promote decent working conditions across all work environments. Understanding these entitlements is crucial for both employers, who must comply with the law, and employees, who need to be aware of their rights. In this article, we provide a comprehensive discussion of these statutory minimum benefits (to the employees), highlighting the key provisions of the Employment Act and the Regulation of Wages (General) Order, 1982 [hereinafter “the Wage Regulations”]
1. Wage Protection
The employers must ensure that wages are paid in full either in cash or through designated employee accounts. Employers must also ensure that all lawful deductions are made prior to the said salary payments as required under Sections 17 to 21 of the Employment Act. An itemised payslip should be provided to the employee, outlining all the wages and deductions.
2. Basic Minimum Wage
In Kenya, minimum wages are generally set through the various Wage Orders which are updated often and which prescribe minimum pay depending on the employee’s category, occupation and location. Employers must ensure that the wage paid is at least equal to the legal minimum applicable to that employee. Paying below that rate amounts to underpayment, which is unlawful. It is however noteworthy that the minimum wage is not the whole employment package as we will discuss below.
3. House Allowance
Under Section 31 of the Employment Act, 2007, an employer must either provide reasonable housing accommodation at or near the workplace or pay the employee a sufficient sum as rent, commonly referred to as house allowance. Further, Regulation 4 of the Wage Regulations provides that where the employer does not provide the employee with housing and the employee’s salary is not consolidated to include housing, the employee shall be paid housing allowance equal to fifteen per cent of his basic minimum wage.
If a contract does not clearly show that the salary is consolidated and includes house allowance, courts may treat the wage as basic pay only, leaving the employer exposed to a separate house allowance claim. Kenyan courts have held that where housing is not provided and the salary is not shown to be lawfully consolidated, house allowance remains payable. The Court of Appeal in Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu [2019] KECA 563 (KLR), held that if the contract had expressly provided that the salary of USD 600 was inclusive of house allowance, then house allowance would not have been awarded. In that case, the Court would have applied Section 31(2)(a) of the Employment Act and treated the salary as inclusive of that benefit. This formed a basis for the award of housing allowance in the matter.
Additionally in Kenya Private Universities Workers Union v Africa Nazarene University [2020] eKLR, the ELRC found that housing allowance is irreducible, invariable and/or non derogable once employment lasts.
4. Hours of work
Regulation 5 of the Wage Regulations provides that the normal working week shall consist of not more than fifty-two hours of work spread over six days of the week. For an employee employed on night work, it shall consist of not more than sixty hours of work per week. For persons under the age of sixteen years, they shall be required to work for not more than six hours in any day. In instances where a union is involved and provisions of a Collective Bargaining Agreement (CBA) are favourable, the same will supersede provided they were not procured by fraud or misrepresentation. See Kenya Union of Commercial Food and Allied Workers v Nairobi Bottlers Limited [2015] eKLR.
5. Overtime
Regulation 6 of the Wage Regulations provides that overtime is payable at one and a half times the normal hourly rate for hours worked beyond the normal weekly hours, and at double the normal hourly rate for work done on a rest day or public holiday. Where an employee is not paid hourly, the hourly rate is calculated as at least 1/225 of the employee’s basic minimum monthly wage. The Wage Regulations also limits the total hours an employee may work over two consecutive weeks, including overtime, to 144 hours for night workers and 116 hours for other adult employees.
6. Weekly rest
Regulation 7 of the Wage Regulations as read with Section 27(2) of the Act provides that an employee shall be entitled to at least one rest day in every period of seven days. The Regulations further provide that by mutual agreement, an employer and employee may defer that rest day to be taken later or accumulate up to fourteen rest days, which may then be taken as paid leave in addition to annual leave. This deferment does not apply to employees under the age of sixteen, whose weekly rest day cannot be postponed.
7. Holidays with full pay
All gazetted holidays shall be holidays with full pay. As stated earlier, overtime worked on public holidays is payable at double the normal hourly rate.
8. Acting allowance
Regulation 10 of the Wage Regulations provides that where an employee works for at least one month in a position or grade with a higher minimum wage than their usual role, they are entitled to an acting allowance of not less than the difference between the two wages.
9. Safari allowance
Regulation 14 of the Wage Regulations provides that an employee who is required to work away from their principal place of employment is entitled to subsistence and accommodation allowance. However, that entitlement only lasts for up to thirty consecutive days, after which the employee is deemed to have been permanently transferred and the allowance ceases to apply.
10. Certificate of Service
Under Section 51 of the Employment Act, an employer is required to issue an employee with a certificate of service upon termination of employment, unless the employment was for a period shorter than four consecutive weeks.
11. Provision of water
Much as this seems to be a minimum benefit, employers must provide water to the employees which must be within the reach of the said employees.
12. Medical Attention
Section 34 of the Employment Act requires employers to provide sufficient and proper medicine/medical care for employees during illness and where possible, medical attendance during serious illnesses. Employees must therefore notify their employer of any illnesses or issues they may experience that may hinder their performance at work for immediate assistance. Employers will ordinarily encourage employees to enroll to Social Health Insurance Fund (SHIF) or provide appropriate insurance for their employees. This duty was affirmed by the Court in Eddie Mutegi Njora v Mega Microfinance Co. Ltd [2015] KEELRC 238 (KLR). Where an appropriate cover is offered to all employees and one fails to be enrolled, they may provide receipts of medical coverage provided they are entitled to the cover.
13. Leave
These benefits include annual leave, compassionate leave, sick leave, maternity leave, pre-adoptive leave and paternity leave which we will discuss in detail in our next article.
Conclusion
Statutory minimum benefits under the Employment Act and Wage Orders form the backbone of fair employment practices in Kenya. Compliance with these provisions is not optional and both employers and
employees must understand their rights and duties to avoid disputes and promote a productive work environment. Any variation of the said benefits will require consultations as required under Section 10 (5) and 13 (2) of the Employment Act, and it must be within the law. The same should not be unilateral. See Daniel Njuguna Mwangi v De La Rue Currency and Security Print Limited [2017] eKLR,
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