Legal bottlenecks in Bill on workers’ right to disconnect from employer

There has in the recent past been excitement about a Bill that seeks to amend the Employment Act of Kenya with the intention of instituting the right of employees to disconnect. The right to disconnect is essentially a right on the part of the employee to separate the spheres of work from private time.

In essence, the Bill seeks to establish the right of an employee not to be contacted by his or her employer beyond the contracted working hours unless there is an emergency. The intention here is to give the employee space from fusion of the work and home spaces through constant demands by the employer for the employee to undertake any work assignment even when the employee has left the physical workplace or after the official working hours.

More interestingly is that the word emergency is not defined. If the Bill were to be enacted as drafted, the meaning of “emergency” in this context would be a chewy issue for the courts to define in lawsuits.

The Bill then goes ahead to state that an employee would be entitled to ignore calls by the employer to perform some work-based functions outside the ordinary times of work. This cushions the employee from what would otherwise constitute insubordination or gross misconduct for refusing to heed the employer’s calls to perform work-related tasks.

Where the employee was to take the call, the Bill requires him or her to be compensated. It is even unclear whether the compensation would be for merely taking the call or obliging the employer by doing the work required in this case.

The concern here is that the drafting is rather woolly and does not provide the mechanism of compensation but appears to assume that it would of necessity be cash payment. It fails to appreciate that there are numerous methods of compensation in the modern workplace. 

A common one today is where employers who call upon the employees to render services outside the normal hours often compensate by way of additional time off rather than pecuniary compensation. For instance, an employee who works during a public holiday may be compensated adequately by way of an additional day off after the holiday. 

Noting as may be expected that most employees would prefer financial compensation, this too could be a contested issue, given that it’s unclear whether alternatives to cash constitute compensation as contemplated by the Bill. 

Contentious question

Even more serious is the fact that the Bill gives no guidance on how this compensation, whether financial or otherwise, is to be calculated. 

The Bill leaves a hugely contentious question begging: may an employer then decide to compensate the employee by equal measure – say a free hour for every extra hour or at a rate higher than normal as may be applicable in most institutions – as overtime? This would be another source of conflict, especially between trade unions and employers.

Thirdly, employers are required by the Bill to establish a policy on how to implement that right to disconnect within their organisations and outlined any exceptions as well as circumstances under which this right may be waived. This would be the surest zone of combat in industrial relations with regard to the Bill. 

It is not unforeseen that most employers would craft this policy with the widest possible scope to reduce this right while workers and especially those represented by Trade Unions would want this scope at the least possible magnitude. There is no clairvoyance in the statement that the content and validity of these policies would be major issues in the employment courts of Kenya. 

To its credit, the Bill seeks to exclude essential service providers such as healthcare, water, air traffic and almost all government services and institutions from the right to disconnect.

But the Bill appears to be intended to operate as if there exists a vacuum in industrial relations as to how employees are compensated for services rendered outside normal circumstances, of which time is just but one. Compensation for services rendered beyond the normal call of duty is already well ingrained in many employment contracts, human resource policies and even in collective bargaining agreements between employers and workers’ trade unions. The Bill would prompt a major review of these, not necessarily for the better.

Aside from legal difficulties, the Bill is of concern for a number of reasons. One of them being that it obtains from what I would say is the failure to appreciate that the modern workplace is somewhat different from the industrial revolution age of sweat shops where workers sold labour on a clock-based matrix of clocking in and out and were compensated for the period spent at work.

Today’s workplace by many measures and even more due to the Covid-19 pandemic requires the worker to render service intermittently and outside the office rather than serially within the traditional eight-hour working day. For this category of work, mechanical division of working hours and non-working hours is misplaced as the basis of reward.

Effects of digitisation 

In truth, a number of countries have similar laws. France has similar laws, known popularly as the El Khomri Law; named after a former French Labour minister. 

These laws require employers and employees to agree on mechanisms for regulating the effects of digitisation to limit the tendency of employers to contact employees after working hours.

In Australia, on the other hand, the right to disconnect is still under intense debate. The only institution that has applied the right to disconnect was the Victoria Police Force, which issued directives in April, 2021 granting its officers the right not to be contacted after office hours except in case of an emergency, which the directives defined.

At their height, such laws can lead to extreme measures. In Germany, a car manufacturer blocked the emails of some staff members between evening and the following day’s working hours to protect itself from being accused of overstepping into employees’ free time.

Granted, Kenya is here emulating a number of these countries that have somewhat similar right-to-disconnect laws. But are we really in the same place with such countries as Belgium, which introduced a right to disconnect legislation from February 1, 2022? Kenya has a relatively high unemployment rate of 13 per cent but much higher underemployed rates. 

This kind of legislation would be burdensome to employers and would not do much to ameliorate the state of unemployment. Suffice it that if the Bill was to be enacted, Kenya would practically be the first African country to pass that kind of legislation.

A final weakness with the Bill is its presupposition that all employers are corporations with large numbers of employees. It does not address the reality that even the employees it seeks to protect are themselves employers of house helps and other categories of workers. So, how would this be applied to them?

My view is that the Bill may have identified a problem that it seeks to address in a populist way that will in turn disrupt established industrial relations and even further bedevil the courts with disputes of a kind that will barely serve its intended purpose. Whereas there may be an ailment, the prescription may need to be more localised in a way that a populist Bill of this kind is itself disconnected from.

The writer is Head of Legal at Nation Media Group PLC