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House helps entitled to same rights as all other employees

By Sarah Okimaru | Published Mon, February 27th 2017 at 00:00, Updated February 26th 2017 at 21:56 GMT +3

It is disconcerting to note that the rights of the house help are considered an emerging area when in fact, for a long time, the house help has been entitled to the same legal protection as any other employee.

The laws regarding employment in Kenya, contained in the Employment Act 2007, provide the minimum rights and benefits employees are entitled to.

However, in discussing the house help’s entitlement, it is necessary to distinguish between the house help as a long-term employee and the occasional house help who works in various houses in a week and is not permanently employed by any one house.

The piecemeal worker

For those who have a house help come in once a week or such other period of time that is no more than three times a week, and the house help is known to work in other households for the remainder of the week, the law provides a reprieve. We are all familiar with the ‘mama wa kufua’ phenomenon.

In David Michael Bilasio v Christopher Kitutu (2015) eKLR, the Employment and Labour Relations Court looked at a situation in which a house help worked for no more than non-consecutive three days a week in one home and worked for other households the other days of the week.

The court opined that in such a situation, by choosing to serve different employers in the week, the claimant forfeited the right to hold any one employer accountable for granting the minimum terms of employment granted in the (Employment) Act.

In other words, piecemeal workers such as the ‘mama wa kufua’ who work no more than three days a week in many houses and have many employers in the week or month need not be terminated in the manner provided under the Employment Act 2007.

In the case of David Michael Bilasio, the court held that: “It was sufficient for the respondent or any of the other employers of the claimant to simply inform him that the piece work he did was no longer there.”

House help under contract

For starters, a contract of service can be in writing or oral. The employer is obligated by the Employment Act 2007 to keep the employment records of all his or her employees, which records are relied on to prove the terms of service. Failure to keep records by the employer is likely to result in the employees’ account on issues such as payments of wages remaining uncontroverted. As can be seen in the case of Ruth Imbuka v Kobla Ayui (2012) eKLR, failure by the employer to produce receipts to show that they paid their house help’s salary was construed against them.

With that in mind, a house help is considered an employee in the normal sense and is entitled to the protection provided under the Employment Act like any other employee.

To sum up these rights: An employee is entitled to payment of salary/wages, a statutory minimum wage is set for most industries. In addition to the basic salary, the employee is entitled to house allowance or in the alternative, appropriate accommodation should be provided by the employer.

As in the case of Mary Rhobi v Annan Bhamania (2014) eKLR, an employer should be aware of the current minimum wage payable to house helps in order to ensure that they do not end up in disputes over underpayment.

Termination of employment for the house help must also be in line with the provisions of Part IV of the Employment Act, and in particular an employer should keep in mind the provisions of Section 40, which provides that the termination of employees should be in writing, reasons for termination must be given and proper procedures for termination must be employed.

This has been the long-held view of the Employment Court as can be seen in the cases of Elizabeth Odhiambo Oduor v Shalin Vora (2017) eKLR, and Ruth Imbuka v Kobla Ayui (2012) eKLR.

In the two cases, the house helps’ employment was terminated on account of need, in other words, redundancy. The courts have held that the procedure for termination even in such a case must be followed, including issuing one month’s notice of termination, notification to the labour union or office, payment of all accrued leave days and severance pay.

In the cases referred, the employers were liable in most cases for not following the right procedure and in most cases, asking the employee to leave without proper notice as provided under the Emploment Act.

In conclusion, something must be said about the case of NML v Peter Petrausch (2015) eKLR, in which the Employment court awarded the house help Sh1,270,000 for unfair termination.

The court found that the employer sexually harassed the house help and awarded general damages to the tune of Sh1,200,000.

“The court must be careful not to see sexual harassment as just another unfair termination reason, but see it for what it is: Conduct that violates the multiple rights of the individual,” the judge said. This is why the court went beyond the 12 months’ salary statutory sealing set for award of compensation for unfair termination.

All in all, all these employment cases are a reminder of the need for both the employee and the employer to familiarise themselves with the employment laws in Kenya. In particular, it puts all those who employ house helps on notice that the law holds them accountable as employers.

The writer is a lawyer