Legal guidance for employers and employees

The arrival of coronavirus and its impact on the economy in Kenya was inevitable. With the immediate measures taken in March to prevent and control the spread of Covid-19, thousands of workers were asked to work from home. The subsequent economic recession has rendered employment contracts temporarily or even permanently difficult to uphold for many employers and a new unwelcomed norm emerged. Some employees have been forced to leave their company, some got pay cuts or were asked to take unpaid leave without any compensation.

What does the law say in this situation of Force Majeure? What can employers do and what can employees expect from their company?

Advocates Henry Faraji, specialist in corporate, employment and labor law, and Johnson Kariuki, specialist in corporate and commercial law, answered some of the most asked questions in our recent webinar. Here are some of the main highlights:

  1. Contractual Obligations.

A) ‘Force Majeure’

Force majeure as quoted by Advocate Henry is an unforeseen event where one contracting party is not able to perform or fulfil their obligations due to unforeseen circumstances.

A force majeure clause can be invoked subject to various conditions. However, if an employer intends to invoke force majeure due to COVID-19, they must be able to prove a clear performance impossibility linked to COVID-19, that they could not have foreseen beforehand.

You CAN NOT rely on force majeure if:

  • It is not expressed in the contract in written form;
  • The clause is present in the contract but does not cover the current coronavirus pandemic or governmental actions,

In this context, instead of relying on Force Majeure, the contractual parties should undertake various measures to mitigate potential contractual liabilities that the COVID-19 made temporarily or permanently impossible to perform.

 

B) Frustration

In the absence of a force majeure clause in a contract, employers can rely on the doctrine of frustration, it automatically terminates the contract and neither party will no longer be bound to their obligations.

The main purpose of frustration is to avoid unfairness where there is a momentous change in circumstance and neither party is at fault.

 

2. Employment Contracts.

The current measures that have been taken to fight and control COVID-19 have several effects on the current employment contracts/relationships. Advocate Johnson highlighted the various related legal issues:

A) Leave

Unpaid leave: The Employment Act is silent on the matter of unpaid leave. Advocate Jonhson suggests the employer consult with the employee, and if the employee consents, the employer must issue formal writing on the mutually agreed changes to the employee.

Borrowed paid leave: There is no provision in the Employment Act for leave taken from another year, the law only provides for the current calendar year. Advocate Johnson advised a mutual agreement when taking this approach.

 

B) Pay cuts

An employer cannot unilaterally change the terms and conditions of an employment contract if the change is going to be detrimental to the employee. If an employer decides to implement pay cuts, written consent from the employee is necessary.

 

C) Redundancy

During this period, many employment contracts will be terminated on account of redundancy.

Section 2 of the Employment Act defines redundancy as “the loss of employment, occupation, job or career by involuntary means through no fault of an employee, involving termination of employment at the initiative of the employer”.

These circumstances can occur for example if the employer has ceased, or intends to cease continuing business, or if the requirement for the employee to perform a specific type of work, or to conduct it at the usual, has ceased or diminished.

However, if the termination of employment arises from the above definition or examples, Section 40(1) of the Employment Act provides the 7 procedural legal requirements to be met by the employee.

 

As earlier stated, these are just some highlights, for more detailed information, you can re-watch the webinar hereThe intent of the contents of this article is to provide general guidance on the subject matter. Seek specialist advice about your specific circumstances.

 

Cynthia Omayya, Human Resource Associate, Kipawa.

    

Organizations need to understand the age distribution of the workforce so as to develop strategies that attract and maintain their unique skills. Effective team management is a core skill for high performing teams. In the wake of COVID-19, most organizations have switched to remote working and it is important to understand the different generations to assist them best in this transition.

What is a multigenerational workforce?

Each generation is shaped by their birth years, age and important events that occurred affecting the society.  These differences impact each generation’s work values and ethics and preferences in managing and being managed. Sociologically we count 5 generations in the current job market:

 

Traditionalists: 1927 – 1945, ages 74 and above

The silent generation, habitually equated to tough times, sacrifice and hard work. Yes, they are still working and yes, they are still killing it.

When it comes to technology they’ll simply have to adapt, difficult? maybe, but definitely possible, a little patience with them will go a long way. They are used to early mornings and physically going to work. For them, work is ideally meant for the office and is not meant to be carried out in the house. Most traditionalists in managerial positions use traditional management methods such as observation and ensuring adherence to the office’s rules. Traditionalists that are now working remotely have had to adjust their managerial styles and put more emphasis on deliverable results.

Traditionalists are not accustomed to completing their work on a less defined schedule, they need to know how the management and organization at large will be able to measure their success.

 

Baby Boomers: 1946-1964, ages 55-73

‘First TV’ generation. Often known for their abilities to think big but are also known to be self- centred. Many baby boomers are likely to place themselves in positions that allow them to add value to the organization. They may face difficulties in building strong relationships. In order to support them, the integration of real-time technology (video conferences and real-time chats) is essential because it will provide an engaging experience for all team members.

Baby boomers are hardworking and value recognition for their skills and expertise. They prefer more structured approaches to set and achieve goals.

 

Generation X: 1965-1983, ages 36-54

‘Middle child’ of the generations. Often known for their individualistic tendencies (independent, resourceful and self-sufficient).

They value work-life balance and are the first generation to grow up with computers, technology is inextricably woven into their lives hence are quick to adapt to remote working.  Those in managerially positions are often remarkably effective in managing virtual teams because they adopt a results-based approach. They mainly focus on timely deliverables rather than how and when work is completed.

 

Millennials: 1984-1996, ages 23-35

Often described as ‘high performers’ and ‘overachieving’ generation. They are the most comfortable group in terms of collaborating online. They can form relationships with people that they will probably never meet face to face. They feel great pressure to succeed and have notable meticulous organizational skills.

While managing remote millennials take into consideration that they prefer to be judged based on their results and not based on the hours spent working. They prefer more relaxed setups and value recognition for their achievements and efforts.

 

iGen: 1997-mid-2000s, ages mid-teens-22

Born into technology. The oldest members of this generation are in high school and institutes of higher learning (colleges, universities etc). We have had the pleasure of interacting with them through attachments and internships, they are quickly joining the workforce and soon be a huge fraction of the workforce. This group will be interesting to learn more about in terms of the values and beliefs they will have and what best will most motivate them.

 

Now that we’ve gotten more insight to each generation and how best to manage and support them to work remotely, it is important to note multigenerational workforces are much more similar than they are different. They want the same things, support, recognition and appreciation. The best approach managers can use in managing and supporting remote working is through individualized approaches, simply put ‘meet people where they are.’

Encourage the spirit and practice of willingness to teach and to learn whether in remote or physical workplaces.

 

Cynthia Omayya, Human Resource Associate at Kipawa