What’s the legal view of annual leave in Covid era?
Ensuring that an employee goes on leave is part of the rule of law concept in an employer-employee relationship.
Thank you, Eric, for your guidance on legal matters. I am an HR in one of the Catholic dioceses in Kenya.
I have the following questions concerning annual leave.
1. Can an employee be denied annual leave because they worked half a day due to the Covid-19 pandemic?
2. What is the place of sick leave and compassionate leave? Can they be considered part of the annual leave?
3. Another question outside annual leave. Is there a difference between gratuity and benefits?
Hi Reader,
A person’s enjoyment of their right, in whatever context, is not contestable unless such celebration causes harm and reduces others’ capacity and freedom to enjoy theirs. This is the fundamental premise upon which human rights become or stay unlimited. Let it be understood that human rights are not primarily based on the expression of law.
However, the law is a governing tool that tethers people into respecting relationships that would otherwise become untenable if left ungoverned. Therefore, the employee-employer relationship is such that without law, either side of the divide has proved over time to abuse their responsibilities and often overstep the mark of acceptable labour relations.
This conversation emphasises that leave for an employee is a manifestation of fair labour practices that is imposed on an employer to ensure that the former, on an assumption of rest, will find value in private time, relate with family or friends, rejuvenate and return to work in better stead at the predefined time.
This is anchored on Article 41 (1) of the Constitution of Kenya. Further Article 41 (2-b), an employee or a person plying their business in the legal description qualifying them as an employee is entitled to reasonable working conditions. It, therefore, comes to pass that the Employment Act at Section 28, under the Constitution, provides several aspects in which the leave policy in an organisation must be formed and practised.
Ensuring that an employee goes on leave is part of the rule of law concept in an employer-employee relationship. Section 28 of the Employment Act helps in the contextualisation of whether Covid-19 effects of half-day work stops the expressive nature of the right to leave of an employee.
There is nowhere it is indicated that an employer would, with or without any legal force, use emerging issues such as Covid-19 to calculate the number of days one gets to enjoy as leave. However, this does not stop the employer and employee from negotiating, based on the human resources policy document on how to handle leave days, especially when organisations are under a crisis.
Employee benefits
Your second concern is whether sick and compassionate leave forms part of the annual leave. The straight answer is no. Section 30 of the Employment Act, which arises from the principle of reasonable working conditions, demands employers to allow employees to first seven days of sick off, with full pay. If the sickness persists, the proceeding seven days is with half pay. The recommendation of sick leave must be given by a medical practitioner of repute and recognised by the employer as credible whose opinion sits above aboard.
Therefore, in law, you are entitled to 14 days of sick leave. One must remember that annual leave is based on official working days, while sick leave is based on calendar days. This difference runs from the premise that sickness discriminates, not the day to attack someone.
On the other hand, compassionate leave is when an employer allows an employee to attend to misfortunes that may visit him or their immediate circle of relatives and require their attention. Such troubles could include and not be limited to death, sicknesses, accidents and disaster claiming or maiming life.
While this is not expressly in law, it is indicated at Section 29 (3-b) that upon expiry of maternity leave, a female employee may proceed for a compassionate leave on the consent of an employer. This prerogative leaves compassion out of the definition of annual leave but also removes automatism from it.
Lastly, you seek to know whether there is a difference between gratuity and benefits. From a practitioner’s perspective, employee benefits are the perks or fringe benefits provided to employees over and above salaries and wages. These employee benefits packages may include overtime, medical insurance, vacation, profit sharing and retirement benefits, to name just a few.
Gratuity is a monetary gift of an employer to an employee that is gratuitous in design and, therefore, discretionary. It is often paid to a departing employee, often in circumstances where there is no pension scheme provision. Its payment is governed by one’s contract and the policies of the employer. Therefore, it falls under employee benefits.
Eric Mukoya is the Executive Director of Undugu Society of Kenya. Do you have a legal problem you would like addressed by a lawyer? Please email your queries to [email protected]
