Do you have a contract with your nanny?
The contract serves as the legal document that binds both the employer and the employee, and it must include essential identity details.
What you need to know:
- The nanny must be an adult who voluntarily agrees to work, free from any form of coercion.
- The employer is required to specify the job title along with a comprehensive job description in the contract.
Hi Eric,
I want to draw up a contract for my nanny. How do I ensure the document is legally binding, and what should it capture?
Household or family nannies, under the law, are considered employees as defined by the Employment Act, which serves as the primary legal framework implementing Article 41 and related provisions of the Kenyan Constitution. Any employment contract—also known as a contract of service—must clearly reflect fundamental principles of just labour practices. This includes ensuring fair remuneration, reasonable working conditions, and the freedom to form, join, and participate in activities or programs related to trade unions, as applicable to the position.
The nanny must be an adult who voluntarily agrees to work, free from any form of coercion. The Employment Act has rightly prohibited child abuse and forced labour, rendering any contract that fails to comply with these principles void from the outset.
Furthermore, under Section 8 of the Employment Act, the contract must be in a form that is legally recognisable, defensible, and enforceable. Whether written or oral, it must constitute an agreement that can be witnessed or evidenced, should its validity come into question.
Legal document
Substantively, the contract serves as the legal document that binds both the employer and the employee, and it must include essential identity details.
It is imperative to include the full names and addresses of both parties, particularly those corresponding to their official identification.
The employer is required to specify the job title along with a comprehensive job description in the contract. This description should outline the broad scope from which the particulars will be derived.
The job specifics must be performed by the employee faithfully. Additionally, it is important to detail the commencement date of the contract and its duration.
Other specific components of the contract must clearly define the type of employment relationship, along with the relational parameters that develop and are maintained through this role.
This relationship can result in a temporary, fixed-term, or permanent and pensionable contract, each of which will incorporate a probationary period. The key performance indicators to be monitored and evaluated during the probationary phase must be clear, practical, and reasonable.
Specify work location
Additionally, the contract should specify the work location, outline the daily hours expected, and provide a cumulative breakdown into weeks and months, along with details regarding overtime. It should also clarify the rights associated with various types of absences, including maternity, paternity, sick leave, compassionate leave, annual (rest) leave, and public holidays.
Remuneration and benefits are central to any contract. The Employment Act has defined wages or salaries as integral parts of the contract, besides the mode of, conditions, and times of effecting payment. House nannies have their minimum salary declared by law, often based on the ranking of the towns in which they are employed.
The Regulation of Wages (General) Amendment Order of 2022 prescribes the minimum wage exclusive of housing benefits to Sh15, 201, Sh14,025.40, and Sh8,109.90, which account for cities, moderately and lowly rated towns. Cities are Nairobi, Kisumu, and Mombasa, while moderately regarded towns include places like Limuru and Ruiru. It's important to ensure that the nanny's remuneration is fair and in line with these regulations.
Many employers take it for granted that providing housing and meals for their household nanny is essential for efficient time management and the successful completion of assigned tasks; however, this is not always explicitly stated. It is crucial to include specific clauses in the employment contract that address these considerations. Additionally, it is strategically important to outline health and safety measures.
Safe working environment
The Occupational Safety and Health Act requires employers to provide a safe working environment, which includes implementing precautionary measures for medical responses in emergencies and preventing work-related injuries and illnesses. Expanding upon the safety context, Article 27 of the Constitution stipulates that no individual should face discrimination.
Every contract of employment has three other fundamental components. First is the code of conduct, which indicates the acceptable mannerism expected of the employee. Secondly, the dispute-resolution approaches are presented in chronological order.
It is preferred that an alternative to the court's adjudication be the first consideration, such as mediation. Thirdly, is to define the grounds for separation between the employer and employee. This could be through a known notice period by either party. It is also likely to mention reasons why summary dismissal is possible; often, the reasons are mainly gross misconduct.
However, these options give rise to the need to contextualise Article 47 of the Constitution on the fairness of such administrative actions.
An agreement or contract that qualifies as a legal document must fully demonstrate the parties' willingness to set up and maintain particular relationships. This is only possible if the employer and the employee sign the employment contract. Similarly, their signatures must also be witnessed. The purpose of witnessing is confirmation that neither of the parties was coerced into a contractual relationship.
