Can I be sued for paying my house-help below minimum wage?
House-helps' employment rights and duties should be seen through three basic lenses that serve legal and social constructions of work.
A friend of mine was reported to the Labour offices by her house-help and is now expected to appear in court. The charges were low pay and poor working conditions. What does the law say about the minimum wage and working conditions of domestic workers? I hadn't thought much about it until my friend's incident occurred.
Dear reader,
The law's most accurate purpose is to create equality for everyone. This is espoused in Article 27 (1) of the Constitution, while it also provides room for equity to remedy those systemically ostracised, as given in Clause (6) of the same Article. The state is duty-bound to take legislative and other measures, including affirmative action programmes and policies, to redress any disadvantage suffered by individuals and groups owing to past discrimination. House helps are part of this equal and equitable employment heritage.
House-helps' employment rights and duties should be seen through three basic lenses that serve legal and social constructions of work. First, house-helps are human beings of no lesser value and have rights as envisaged by the Bill of Rights in the Constitution.
Secondly, what is known as a home or residential house is a house-help's working station and must be furnished in a way that advances the safety and protection of those who operate in it. For instance, the employer must provide water in such a space for the employees to consume while delivering their duties. The house, therefore, must be kept to the standards created by the Occupational Safety and Health Act of 2007, alongside the provisions of the Employment Act.
Thirdly, house-helps are professionals offering their services to those who seek them, and the law demands their employment relationships to be defined within a contract that spells out duties and rights between them and the employer, especially committing to work for fifty-two hours a week. This is given in the Employment Act in Part 1 Section 2.
As professionals, it is expected that house-helps are entitled to decent work. The International Labour Organisation (ILO) defines decent work to be productive work for women and men in conditions of freedom, equity, security, and human dignity.
Article 41 of the Constitution provides all persons the right to fair labour practices. Some practices are fair remuneration, reasonable working conditions, forming and joining or participating in the activities and programmes of a trade union; and going on strike. It is crucial to read Article 41 and Article 28, which provide each person with the right to inherent human dignity.
The Regulations of Wage (General) (Amendment) Order of 2022 places the minimum wage of a house help in three categories. In cities like Nairobi, Kisumu, Mombasa, and Nakuru, the minimum wage is Sh15,201.15, while in all former municipalities and towns councils of Ruiru, Mavoko, and Limuru at Sh14,025.40 and all other areas at Sh8109.90. All these are accompanied by benefits that accrue to an employee within the confines of a contract of service, which must be written if it creates an employment relationship beyond three months.
It is important to remember that all house-helps are entitled to all forms of leave. Sick leave of seven days fully paid and an extra seven with half pay. Similarly, they are permitted twenty-one days of annual leave with full pay, just as they are entitled to maternity or paternity leave.
Additionally, the house-help's employer is legally expected to provide reasonable housing or assign 15% of the basic salary as an allowance that caters to their needs. The employer is also directed to contribute to the house-help's health insurance and social protection, such as the National Health Insurance Fund (NHIF) and National Social Security Fund (NSSF), besides other statutory demands established by the Work Injuries Benefits Act (WIBA).
When conflicts occur, as would, it is expected that the employer and employee have policies that guide dispute resolution. If the internal mechanisms fail, the house-help may visit the labour office near them to seek an audience and a forum to resolve the dispute. If this is not viable, the right to petition the Employment and Labour Relations Court is given constitutionally. It is further expected that termination of an employer-employee relationship is a duty for both.
The house-help can tender their twenty-eight days' notice to resign if their wages are paid monthly, within the confines of the contract of service. On the other hand, the employer could also give notice to terminate the services of the house-help within the same time frame. However, where the wages are paid daily, a contract is terminable by either party at the close of any day without notice.
This action brings into discussion the significance of Article 47 Clause (1) of the Constitution, which gives every person the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair.
In the confines of the issues raised and legal provisions cited, it should be understood that every person has a right, as given by Article 22 Clause (1), to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. The case of Caroline Wanjiru Luzze vs. Nestle Equatorial Africa Region Limited (Cause 1045 of 2012) provides an example of how various labour relations laws work to promote the rights of employers and employees.
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