Is the Proposed Law on the Right to Disconnect a Good Idea?

The 2022 Bill replaces the Employment (Amendment) Bill, 2021 (2021 Bill). The 2021 Bill which introduced the issue of the right to disconnect for employees for the first time in Kenya, lapsed as a result of the shortened parliamentary timetable due to the general elections of August 2022.

The 2022 Bill mirrors the 2021 Bill except for one clause. Both Bills allow an employer to contact an employee during out-of-work hours only for the purpose of addressing an emergency. However, while the 2021 Bill allowed the employer to generally make such contact on condition that it was necessary to address an emergency, the 2022 Bill places an even stricter caveat on this provision, by stipulating that the employer can only make contact to the extent necessary to address “an emergency arising out of work falling within the employee’s responsibility.”

Therefore, under the 2022 Bill, even where there is an emergency at work, the employer can only contact the employee if the emergency is related to work and the work is the responsibility of the employee being contacted.

Despite this proposal which seeks to address the sometimes blurry line between work and non-work, particularly for relatively senior employees and workers in professional firms, its applicability and relevance in Kenya are problematic for several reasons.

First, the 2022 Bill does not define what amounts to an emergency, leaving it subject to differing interpretations. It obliges an employer to establish a policy addressing the circumstances under which they may contact the employee outside of work hours, on the use of electronic devices during out-of-work hours and when the right can be waived. In the absence of statutory guidance on what constitutes an “emergency”, this leaves all parties involved unclear about its scope. Guidance is also required on what limits can be prescribed in the policy and when employees can exercise the right not to respond.

Secondly, the draft law places the responsibility of invoking this right on employees by granting them the right to disregard any communication from work during out-of-work hours and absolves them from any form of reprimand for doing so. Whilst this may be aimed to empower employees to exercise this right as they wish, implementing it may be more complicated. For instance, it is likely to induce tensions in the workplace where some employees choose to exercise the right and others do not. Some of the repercussions for this may be that employees who choose not to exercise the right may be regarded in good light as opposed to those who do. Further, by being more responsive to the employer’s needs or for those who are particularly ambitious, some may decide not to exercise the right in order to get ahead of employees who do. The net result of this may hurt those same employees that the Bill sets out to protect.

These provisions may also make it difficult for many employers to manage their businesses on a day-to-day basis. By barring employers from contacting employees outside of working hours, employers may be sceptical about reaching out to employees for the purposes of making any kind of inquiry, which may be essential to the employer in making pressing decisions (for example because of an imminent deadline to respond to a client or customer) which may not qualify as an “emergency”.

The Bill also fails to appreciate the flexible nature of work post-COVID-19 which is more output orientated than the number of hours spent in the workplace. The right is more easily implemented in the traditional workday period that imposes rigid work hours. However, it becomes difficult to implement the right when employees are only required to register a specified number of hours in a day and have the autonomy to establish their own working hours. Additionally, in Kenya, the majority of employees work in blue-collar jobs, where the nature of the work only requires them to report to work during a specific duration, mostly in the daytime, with no work taking place at all beyond that. Therefore, the legislation would not benefit the majority of the workforce in the country and begs the question – who is it designed to assist?

Finally, the 2022 Bill does not appreciate the global nature of business engagements in white-collar jobs. While the 2022 Bill appears to be responding to the complaints of many employees during the COVID-19 pandemic of being “at work” for much more than the number of hours they used to spend at the office pre-COVID-19, it fails to appreciate the reason for this. The growing popularity of videoconferencing during the COVID-19 era brought with it a realisation that business could expand their services well beyond the country in which they have a physical presence. This expansion comes with differences in time zones across different countries, hence why some meetings must be accommodated beyond normal working hours. The Bill also ignores the fact that often if an employee has had to work after hours, that time can be compensated by time off during normal working hours, therefore, allowing flexibility and agility in how and when work is carried out. Therefore, legislating against any non-emergency-related business engagements post-contractual working hours would prevent businesses from competing favourably on a global front.

Successive governments in Kenya have spearheaded efforts to attract and grow foreign investment in the country, as part of their bid to revamp our economy. With many multinationals and other organisations coming to Kenya, one of the country’s biggest draws is its workforce and hardworking culture. Local subsidiaries often report to and work with their colleagues in offices elsewhere and their customers and clients regionally and globally. This is essential to meet their economic needs and ensure the sustainability and profitability of their ventures. Therefore, such a law could disincentivise foreign investors from partnering with domestic firms as it sends the message that domestic firms’ capabilities to address the demanding business needs are primarily limited to certain durations within each day. In fact, President Ruto during his campaign trail last year when the 2021 Bill had been published said, in response to a question by the author on what he thought of the proposed law, that any person who proposes this kind of law does not know what it takes to run a country like Kenya.

Additionally, the expansion of the economy to accommodate the ease of entry of foreign firms into the country or through a partnership with local firms introduces stiff competition to Kenya’s domestic firms. Kenyan professionals such as lawyers, accountants, marketing executives, stockbrokers, investment bankers, architects, information and communications technology specialists, actuaries and insurance advisers who compete with professionals in other markets to service international clients and businesses operating in or with Kenya have no choice but to step up to the challenge posed by such competition.

For instance, in the case of law firms, it is common to receive requests from clients to expedite the delivery of work, for instance drafting a document or an analysis of a matter very quickly. If the Kenyan law firm that has been retained to provide this level of service cannot do so because its staff cannot work after office hours, then it is possible that such clients will move their business to international firms that have no constraints to getting the job done in the timeframe required. How will local Kenyan firms compete in this kind of environment? It is not hard to see that the impact of the 2022 Bill will likely channel business away from domestic firms to international and foreign firms. This would counteract efforts to strengthen the competitive prowess of Kenya’s domestic firms against foreign firms and undermine their ability to decisively contribute to the country’s economy.

It is also worth noting that should the 2022 Bill come into force, Kenya would stand isolated as one of the few countries in Africa to have regulated the right to disconnect. This would likely place Kenya’s competitors in the continent as business and foreign investment destinations, at an advantage and draw away business interests to themselves, given that they would style their domestic firms as having a more capable portfolio to meet investors’ business needs in the ever-competitive markets.

Kenya is in serious trouble with a depreciating currency, rising inflation, growing unemployment and a massive debt servicing burden, to name but a few. The country desperately needs to grow the economy, increase economic activity in various sectors such as manufacturing, agriculture, and financial services and also bring more people into the tax bracket. The 2022 Bill does nothing to help Kenya at this critical juncture of its development, and the reasons behind its introduction should be thoroughly interrogated to see if there is another way of addressing the issue. Introducing such a drastic and ill-thought-out change to the working culture will in the eyes of the business community, both local and foreign, damage one of the country’s most attractive features for investment and expansion – the hardworking nature of its people.

Should you have any questions regarding the information in this legal alert, please do not hesitate to contact Sonal Tejpar or Rosa Nduati- Mutero.

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Contributors

1. Edwina Warambo – Senior Associate
2. Njoki Kihiu – Associate
3. Sidney Netya – Trainee Lawyer

The content of this alert is intended to be of general use only and should not be relied upon without seeking specific legal advice on any matter.