Employers ramp up fight against employees' 'right to disconnect'

By Graham Kajilwa | Sep 17, 2023
Federation of Kenya Employers (FKE) National President Dr Habil Olaka. [Wilberfoce Okwiri, Standard]

Employers have stepped up their opposition to the Employment (Amendment) Bill, 2022, which proposes to give workers "the right to disconnect" from their bosses outside working hours.

Federation of Kenya Employers (FKE) argues the expected changes to the Employment Act, 2007 are radical and could limit companies’ ability to manage workers.

FKE National President Dr Habil Olaka said the relationship between an employee and the employer is already catered for in the Employment Act, 2007 and the existing respective Collective Bargaining Agreements (CBA).

Including these changes, he said, creates two centres of managerial power and ultimately will cause disharmony and indiscipline in workplaces.

“The International Labour Organisation (ILO) has provided instruments, which have been successful in managing working hours and overtime payment,” he said at a press briefing in Nairobi on Friday.

The Employment (Amendment) Bill, 2022 provides employees with the right to disconnect from work by choosing not to do any work-related assignment outside of the specified working hours while also providing a mechanism of compensation if they agree to it.

However, Dr Olaka noted that such a provision in the law would pose a challenge for employers who seek to be hands-on in their enterprises for business continuity.

“These proposed changes negate the essence of freedom and realities of the labour market. The employers’ administrative prerogative should not be curtailed by legislation,” he said.

The Bill was passed by the Senate on August 1.

It says that an employee shall not be reprimanded punished or subjected to disciplinary action if they disregard work-related communication during out-of-work hours.

And where an employer contacts an employee during the period when there are no mutually agreed out-of-work hours, the employee shall not be obliged to respond and shall have the right to disconnect.

Dr Olaka said the Bill is "too prescriptive" and requires that employers develop policies to regulate phone usage by employees outside of work.

“An employee has the right to keep their phone on or off if it is their personal phone. If the phone is an official one, then the employee is under obligation to use it as required by the enterprise,” he argued.

He said if the nature of the business requires a shift system or extension of working time to meet the business demands, the proposed law would hamper flexibility.

Dr Olaka noted that the payment of overtime is already factored in the law.

“Most CBAs provide for flexibility in the management and regulation of working time. To our knowledge, no union or employee has raised any concerns to warrant the passing of this law,” he said.

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