It is almost the end of the year, and I am yet to take my leave days. When I brought it up with my employer (HR manager), she told me I would just have to forfeit my leave because there was nobody to replace me when I was away. Is that legal? I felt let down. I don’t want to sue, but I just need to know.
Dear Distressed Employee,
The employee-employer relationship is founded in law. There is appreciation amongst human resource practitioners; without law, many of such relationships would end in misunderstandings, assaults and all manner of abuse from either side.
The law is in place to govern the excesses of human behaviour, guard against exploitation, and promote amiable work environments to all who share such spaces. Similarly, the employment law entrenches labour practices that adhere to human rights, besides defining parameters for peaceful coexistence. You have sought knowledge on a pertinent question. What is the space of annual leave in a person’s work-life?
Everyone working for another or an institution in the definition of employment has their labour rights squarely covered and protected by the Constitution of Kenya. The Constitution at Article 41 (1) states that every worker has the right to fair labour practices, and 41 (2) adds, every worker has the right to fair remuneration and reasonable working conditions. The question of annual leave forms part of the 41 (2-b) aspect of reasonable working conditions.
As a worker of either permanent or fixed-term contract, one is expected to proceed for annual leave to rest, rejuvenate, and replenish, if at all. Section 28 of the Kenyan Employment Act provides that every employee is entitled to 21 working days that become their annual leave after one year of service to the company, with full pay. This is calculated as 1.75 working days per month.
It does not mean that an employee is not entitled to leave days if they have not completed one year of service. Instead, that the employee accrues their leave as per the number of months worked. For instance, if one has worked for a company for two months, they will be entitled to 3 days of leave thus far. The leave days can be taken in lumpsum or bits spread across the year, as agreed between the employee and the employer.
Further, the law provides that any leave days not used within the year can be carried forward with the company’s consent and be utilised before March 31 of the new year. Should this not happen, and without any reason thereof, the employer must be aware and n control of, the unspent leave days are forfeited. The law guides further that leaves days carried forward must not exceed ten. This implies that employees have been legally bound to take at least 11 days of their leave in any current year of work. What must be noted is that public holidays including any other gazetted days that imply off-duty and sick leave days do not form part of any worker’s annual leave.
In the event that you fail to take your leave days for reasons your employer approves, such as completion of necessary or urgent work, at the lapse of the 18 months, the employer is obligated to offer you compensation, equivalent to the unspent days as if you had proceeded on leave. The Kenya Employment and Labour courts have pronounced themselves on this matter. In the case of Rajab Barasa & 4 Others versus Kenya Meat Commission [2016], the honourable judge stated, “the employer must ensure each employee has taken the annual leave when due or make payment in lieu thereof.” This means that your employer must organise work in such a way that every employee has a realistic and likely predictable opportunity to exercise the right to annual leave as provided in law.
Back to the specifics of your question. Is there a possibility that your employer was right to ask for forfeiture through the Human Resource person? Best human resource practices, often demonstrated by the presence of a human resource management policy demands that employers create an amiable environment in which labour rights entitled to employees must pass. Having said that, it may not be possible to weigh in with certainty since the correspondence between you and your employer on matters of annual leave is not clear. Some facts are missing to condemn or support either of you. While your right to annual leave is non-negotiable and constitutional, the form and the timing for taking such leave is not. Your employer has certain powers bestowed on them to agree with you on the appropriate moment and to reconcile any other days spent off duty in the computation of annual leave entitled. This is more reason; there are other specified forms of leave such as special, compassionate, maternity and paternity, amongst others.
In conclusion, you have a right to go on leave, while your employer has an obligation to create work schedules that allow you to do so. As additional advice, please make sure that any form of leave request is in writing and copies of the response from your employer are kept by you. You may need evidence to convince the judge at the Employment and Labour Court if things go south.
Eric Mukoya is the Executive Director, Legal Resources Foundation Trust. Do you have a legal problem you would like addressed by a lawyer? Please email your queries [email protected]
