How should you terminate your house help?
Domestic workers occupy a significant part of the global workforce. Unfortunately, they are one of the most vulnerable groups of workers. Being informal employees, many are engaged without clear terms of employment or documentation. Additionally, most are economically underprivileged and of low education levels, making them prone to exploitation and abuse. A lot of us fail to recognize that the protections provided by employment and labour laws extend to all employees, including domestic workers. In Kenya, the most common domestic worker is the female house keeper, generally referred to as the “house girl”. Others include butlers, gardeners and drivers.
The case of Moreen Muhani vs Namuben Manji Bhinji (2020)eKLR
As access to information becomes easier, domestic workers are increasingly educating themselves on rights and legal protections due to them. The recent past has seen a proliferation of employment claims
filed in court by domestic workers against their employers on various grounds. One such claim was concluded recently in the case of Moreen Muhani v Namuben Manji Bhinji. While giving his determination on 30th July 2020, Justice Nduma ruled that the employer should not have paid the house girl below the monthly minimum wage of Kshs. 10,107 or terminated her without giving her a 30-day written notice. Further, he ordered the employer to pay the house girl terminal benefits and issue her with a certificate of service. Going by the interest it generated, it was clear that the decision caught many employers by surprise.
Termination of Employees in light of the Employment Act, 2007
The governing law on employment matters in Kenya is the Employment Act, 2007 (the “Act”). In this alert, we look at the legal requirements for termination of employees with a focus on domestic workers.
Termination Notice
Section 35 of the Act provides that before terminating an employee, the employer has to give a written notice to that effect.
a) A contract paying monthly wages may be terminated upon giving a written notice of 28 days. However, a contract may stipulate a longer notice period e.g. of 30 days.
b) A contract paying wages at intervals of less than 1 month may be terminated at the end of the next period upon giving a written notice i.e. If an employee is paid weekly, they may be terminated upon giving them a 1-week notice.
c) For daily-wage contracts, no prior notice is necessary. Either party can terminate the contract at the close of any day.
Payment in Lieu of Notice
If one terminates a contract without notice, they should pay the other party such amount as would have
been earned during the notice period. Most domestic workers are paid for work done on a monthly basis and as such, should be paid a 1-month salary in the event they are terminated without notice.
Terminal Benefits
Terminal benefits refer to payments to be made to an employee upon termination. They include any unpaid salary for period worked, service pay, annual leave pay (for leave days earned and not taken) and any allowances agreed upon in the contract which have not been paid. An employee is also entitled to a certificate of service.
In Kenya, a 15-day service pay for every year worked is mandatory for employees who do not undergo social security deductions e.g.to NSSF or another provident fund. Many domestic employees fall under this category, even though their employers ought to register them with NSSF. All employees including
domestic workers are also entitled to a statutory minimum 21-day annual leave. Upon termination, the
employee should be paid for every leave day earned but not spent.
Grounds of Termination
Section 45 of the Act outlines the valid reasons which entitle an employer to terminate an employee. They are:
- Poor performance;
- Physical, emotional or mental incapacity to perform duties;
- Misconduct; and
- Redundancy
Under Section 46 of the Act, it is illegal to terminate an employee on account of pregnancy, HIV status, tribe, request for leave, request for salary increment, initiation of a complaint against the employer, or participation in a trade union or any other unfair reason. This is also in line with the law against discrimination as outlined in Article 27 of the Constitution.
Unfair Termination
Even with the grounds in Section 45, an employer must follow the right procedure to ensure that the
termination is not unfair:
- The employer should give the employee notice and reasons for the intended termination
- The employee should be accorded the right to be heard before a final decision is given;
- The employee should be allowed to have a representative of their choice during the hearing; and
- The employee should be allowed the right to appeal such decision and the opportunity to be heard during such appeal.
Courts have ruled that any employee who has been continuously employed has the right to complain that their termination was unfair.
Conclusion and M&K Advisory
Termination of employment, even for domestic workers, is not at the sole will of the employer. The decision of Justice Nduma Nderi will serve as a wake-up call to many who have for a long time been oblivious to the provisions of the law on employment. Should you need further advice or an introductory meeting with us, contact us on:
