Legal clinic: How many leave days should an employee get per year?

Am I being shortchanged on the number of leave days?

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Hello Wakili,

I would like you to enlighten me on the number of days an employee should go on leave. Since I started working, nearly two decades ago, I have always gotten 21 leave days per year. When I talk to my peers in other companies, they tell me they get 28 days of leave. Am I being short-changed?

Dear reader,

A 2016 study by Korpela, Kinnunen, Geurts, de Bloom and Sianoja, found that workers who took lunchtime breaks and detached from work, tended to increase their levels of energy at workplaces besides decreased exhaustion, and over time enhanced consistency of increased production. Rests are a good bet and if well structured, relevant for improved performance in a work environment. The law which provides foundation and operative relationship between employers and employees in Kenya is the Employment Act of 2007. The Act provides for almost every question and issue in employment. Based on this law organisations develop specific human resource management policies that fit their circumstances and industry.

The science and importance of rest in a work environment has been put into law. The right to leave is a major term within a contract of service, in which an employer and employee’s duties and rights are outlined. Such rights and duties are the spirit and reflection of the Employment Act. The premise for rest is scientific, where both the employer and employee know how good rest accelerates excellent performance. What has been referred to in this text is annual leave. Section 28 of the Employment Act stipulates that each and every employee is entitled to annual leave after one year of service to an organisation or company that is not less than twenty-one (21) days. In rough mathematical terms, this is equivalent to 1.75 working days for every month worked.

The concept of annual leave is constant and universal the world over, but the number of days and the style of fulfilment can vary. As a concept and practice in Kenya, it derives legitimacy and validity in Article 41 of the Constitution, which provides that every person has the right to fair labour practices. It further at Sub-Article 2 states that every worker has the right to reasonable working conditions, which among other rights include annual leave days. It is acknowledged that employers have negotiating powers to vary the number of annual leave days, and the manner in which they are awarded. The variation, is demonstrated by some employers and industry giving days that are more than 21, which is not universal, as others allow for 24, 28, 36, and up to a maximum of 45, as dictated statutorily.

What should be known to readers is that every industry has its unique dynamics which largely are foundational to the variations. Professionals in the healthcare sector, in particular nurses and doctors are less likely to have an eight to five job routine. They are likely to work odd and night hours and mostly in shifts. The workers in production plants and work environments that require presence without halting operations, are also likely to have different time-work scenarios, similar to others who work in place like Kenya power and lighting company, Department of Defence (DOD), officers of the National Police Service.

Besides, the aforementioned, some of these industries have very strong workers’ movements or unions who tend to negotiate the kind of leave days, entitled to their members in line with the load and functionality of the sector. These aspects tend to inform the form and substance of annual leave days, but do not deviate from the basic minimum of 21 days. Section 26 (2) of the Employment provides for this and states “Where the terms and conditions of a contract of service are regulated by any regulations, as agreed in any collective agreement or contract between the parties or enacted by any other written law, decreed by any judgment award or order of the Industrial Court are more favourable to an employee than the terms provided in this Part and Part VI, then such favourable terms and conditions of service shall apply. In a situation where the contract of service offers an employee more days than the set minimum, Section 28 (5) of the Act directs that the employer and employee agree on how to utilise the same.

Leave is a fundamental element of work-life balance. Gary Keller, a real estate entrepreneur while describing work-life balance said, Work is a rubber ball. If you drop it, it will bounce back. The other four balls—family, health, friends, and integrity—are made of glass. If you drop one of these, it will be irrevocably scuffed, nicked, perhaps even shattered.” Leave is a statutory mechanism through people inspire themselves to create personal and work boundaries as a strategy to rejuvenate performance as well healthier ties in their private spaces. It is encouraged that employers and employees comply with the Employment Act.

Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]