The Kenyan government is joining other countries in considering legislation that would allow remote workers to “disconnect” from their employment duties during off hours. The new post-COVID work paradigm has resulted in the blurring of the boundary between digital working and non-working hours. The proposed legislation would establish a legal right for digital workers to stop working and create a clear line between working hours and personal time. It also includes requirements for overtime pay for work completed outside normal working hours.

Background

In 2017, France introduced the legal right to disconnect for certain cadres of workers and mandatory requirements for employers with more than 50 employees to negotiate with unions to define parameters within which this right would be implemented. Italy, Spain and Belgium soon followed suit, enacting their own versions of requirements on the right to disconnect.

These actions as well as the changing practices around workplace connectivity as a result of the COVID 19 pandemic sparked conversation in the European Union (EU) Parliament on the need for a directive that would establish the right to disconnect among member states. It is worth noting that outside the EU, India and Australia have also enacted legislation recognizing and entrenching this right.

In Kenya, the Employment (Amendment) Bill, 2021 (the Bill) tabled before the Senate by Senator Samson Cherargei, seeks to introduce the same right for Kenyan workers.

The intention of the Bill is to enhance the work-life balance of employees in this digital working era and alleviate employee burnout. It has been observed that with the onset of remote working, employers have been relying on digital connectivity to communicate with their employees and vice-versa. However, due to the ease of accessibility, the boundary between working hours and private rest is becoming less apparent with some employers expecting employees to handle work related matters past contractual working hours.

Additionally, it is becoming increasingly difficult for employees to completely switch off from work with improved, yet more intrusive technology that encourages constant connectivity. Where employees could previously switch off a desktop computer and only access it within office premises, personal laptops and smartphones are now linked to work emails and other instant messaging tools.

The Bill intends to create a clear distinction between working hours and personal time to allow employees have a legal right and basis to switch off from work and re-direct their time to focus on other aspects of their lives.

Legal provisions

Some of the key features of the Bill are:

Employees will have the right to refuse to connect with employers after the conclusion of the agreed working hours, unless there is an emergency to be attended to. The Bill specifies that the working hours are the hours agreed by the parties in the employment contract.

Where an employer contacts the employee outside the working hours, the employee will be entitled to receive compensation for the additional time spent.

An employee shall not be reprimanded, or face termination of employment or otherwise be subjected to similar actions for exercising their right to disconnect.

Any failure to comply with the above provisions may result in a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding one year, or both.

Timely response to our new way of working

The proposals in the Bill are a reminder that regulated workplace health and safety is not negated by remote working. The purpose of the Bill is very clear; to enhance the personal well-being and mental health of employees. It is intended to encourage employees to value their personal time and spend time outside working hours focusing on themselves and their families. It recognizes that the employment relationship is governed by a legal contract specifying working hours and these should not be set aside because the office space has moved into residential homes. In addition, it also supports provisions for overtime pay where employees are compensated for hours worked outside normal working hours.

Challenges

The provisions of the Bill as well as the realities of employment relationships may, however, present challenges in actual implementation of a “right to disconnect.”

Section 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.” An employer may consider an urgent request linked to high revenues or to prevent losses an emergency. As this is open to interpretation, it may be difficult for employees in certain roles to avoid “constant emergencies” making the application of this right difficult for them.

Section 27A (5) and (7) allow an employee to disconnect or fail to respond to emails sent outside working hours without punishment or reprimand. The employee is also entitled to compensation where the employee chooses to respond to emails outside of working hours. The inference here is that where an employer does not comply with these requirements an employee may need to litigate the matter in an employment court.

Few employees will want to bring proceedings against an employer if their aim is to succeed in their role and reach the greatest level of achievement within an organization. Where the overall industry or organizational culture requires long hours to demonstrate commitment, it may be harder still for employees to report and seek compensation for derogation from the law.

A further concern is that while the right to disconnect presents an opportunity to switch off and unwind, employees in highly competitive industries and organizations are unlikely to take this up. When you consider this and the fact that enforcement of the provisions will most likely be achieved through proceedings before an employment court, there is some concern that the Bill will not succeed in achieving its intentions. In countries where the right to disconnect has been applied and enforced successfully, it may be argued that the laws followed accepted norms on work and personal life balance.

Under Section 27 A(7)(b), an employee may demand compensation for not disconnecting after work. Therefore, where this right is not strictly asserted by employees and instead traded in for further compensation there could be a spike in employment costs for employers as they will be legally obligated to meet overtime costs.

Outside of these provisions, the proposal must also consider the fact that many companies have global operations which create challenges for teams. For entities with global operations, time differences could be a significant constraint in the roll-out of a “right to disconnect” program. Many teams are spread out across the world and may need to collaborate on projects which will inadvertently require some members to work outside normal working hours. Furthermore, some projects by their nature may require delivery within tight deadlines which may require late nights and extended working hours.

Personal application of a right to disconnect in which an employee refuses to work beyond a certain time may be a source of friction between employers and employees. While employers will seek resource optimization and delivery of results, employees may rely on the provisions of the Bill not to deliver beyond stipulated working hours.

Finally, one of the positive aspects of working remotely has been increased flexibility for employees. With constant connectivity, many have found themselves working during preferred hours, which has improved their productivity and, in some cases, job satisfaction. Strict “right to disconnect” policies may impinge on this flexibility.

Despite the challenge of implementing a “right to disconnect policy” some European companies have already started to reign in connectivity outside of working hours. Before legislation and even before the COVID-19 pandemic, some companies instituted this way of working through internal policy. These policies include programming internal servers to prevent delivery of emails outside of working hours or during vacation periods.

Outside of organizational policy, employees have also begun to communicate in their own way their disconnection requirements. Some employees now state their working hours within sign off messages and signatures. Others encourage colleagues to disconnect by indicating that there is no obligation to provide a same day response to emails sent outside of working hours.

The Bill does require an employer to develop a right to disconnect policy and this may be helpful in ensuring the employer evaluates organizational as well as employee needs to strike the right balance. An employer policy might be more effective than leaving the onus up to the employee to “refuse to respond.” Limiting access to company email or servers or having talent managers check-in with teams that are constantly working out of hours may be more effective than telling employees not to check emails past work hours.

What does this mean?

If the Bill is passed, some employers may need to revise employment contracts to clearly state the agreed working hours if the contracts currently do not provide for the same. In addition, here the contracts require employees to work outside normal working hours (including weekends and public holidays), the agreement must specifically state that the employees will be remunerated for the additional hours worked.

Employers having more than ten employees will also have to formulate a policy with regard to working hours and overtime to ensure compliance with the provision of the Bill.

Whether or not the Bill is passed, both employers and employees will need to agree on the most suitable arrangement to ensure that there is an optimal balance between work life and personal life such that neither the employee nor the employer are disadvantaged.

Still to be determined is whether the need to compensate employees for overtime will improve productivity and output as workers will be more motivated.

This amendment will be the second amendment to the Employment Act in 2021 following adoption into law of another Employment (Amendment) Act, 2021 which provided for the right of employees to take leave for purposes of child adoption.

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For additional information with respect to this Alert, please contact the following:

Ernst & Young (Kenya), Nairobi

Christopher Kirathe | christopher.kirathe@ke.ey.com

Michelle Kwaka | michelle.kwaka@ke.ey.com

David Kingori | david.kingori@ke.ey.com