On Christmas Eve, your phone buzzes: “Uko shift kesho. Ukikosa usirudi.” (You are on shift tomorrow. If you don’t show up, don’t come back.)
In an instant, Christmas turns from a holiday into a threat.
Legally, however, you can sue your employer if you are being forced to work on Christmas Day.
Njuguna Muri, an advocate and partner at Muri Mwaniki Thige & Kageni LLP, says the law applies to all employees—full-time, part-time, casual workers and interns—provided they
“A casual worker who has worked continuously for one month or longer automatically becomes an ‘employee’ with full legal protections, including the right to refuse working on
A stressed woman at work.
Photo credit: Shutterstock
The only exception is independent contractors—individuals hired for a specific project who do not work under the employer’s day-to-day direction.
If an employer fires an employee for refusing to work on Christmas Day, the burden of proof lies with the employer to justify the dismissal.
Where there is no contractual clause requiring Christmas work, the dismissal is deemed unfair.
In such cases, courts may award compensation of up to 12 months’ salary.
Secondly, Mr Muri says that if an employer forces an employee to work on Christmas Day but pays normal wages instead of double pay, the employee can sue for wage theft.
“All hours worked from 12.00 am on Christmas Day through to the end of the shift fall under the public holiday rules and must be compensated at the 200 percent premium rate, while
Threatening dismissal to coerce an employee into working on Christmas Day without a written agreement amounts to forced labour, a criminal offence under Section 4(1) of the
The offence attracts a fine of up to Sh500,000 or a prison sentence of up to two years and can also support a civil claim for damages.
However, lawsuits are unlikely to succeed where the employee is an essential service provider—such as a nurse, firefighter or police officer—who was lawfully required to workgiven adequate notice and paid the correct double rate. In such cases, the law prioritises public safety and health.
For essential services, the threshold for a “reasonable excuse” not to work is much higher, as Section 81 of the Labour Relations Act limits the right to desert duty where life may be endangered.
“But even then, if you work on Christmas Day, you must be paid at least 200 per cent of your normal hourly wage. There are no exceptions,” Mr Muri says.
An employer cannot pay normal wages and promise a day off later unless the employee agrees to this arrangement in writing beforehand.
If an employee feels pressured or threatened into working, Mr Muri advises prioritising documentation. Employees should keep written records of all communication, including
“It is advisable to request written clarification on compensation and the contractual basis for the demand, especially where the role is not an essential service,” he says.
Where threats involve dismissal for exercising a statutory right to rest, employees should formally lodge an internal grievance and seek assistance from a union
That said, if an employer’s order to work on Christmas is lawful and reasonable, disciplinary action may be justified where an employee absents themselves.
However, before disciplining, the employer must prove that the employment contract required Christmas work, adequate notice was given, double pay was offered and confirmed, and there was no legitimate excuse such as illness, religious observance or childcare emergencies.
Fair disciplinary procedures must also be followed, and the employer must explain the reason for discipline in a language the employee understands, allow representation by a colleague or union official, and hear the employee’s defence.
Where a contract is silent on Christmas work, refusal does not amount to insubordination but constitutes lawful conduct.
In Scoline Anyango Ojung’a v Healthlink Matcare Ltd (2023), the court held that disciplining an employee for refusing to attend a work meeting during mandatory church service violated Article 32 of the Constitution, which protects freedom of religion.
Mr Muri says that where refusal to work on Christmas Day is based on genuine religious observance (particularly relevant given Christmas's religious significance for many Christians), disciplinary action may amount to discrimination and be unconstitutional.
But when is Christmas work lawful? According to Mr Muri, while the reason for requiring Christmas work matters, courts place greater emphasis on whether there is a written
Legitimate grounds include emergency situations, essential services, 24-hour industries such as hotels, airports, restaurants and media houses, and contracts that explicitly require Christmas work with clear compensation terms.
Even in essential services, compensation at double the normal rate must be paid.
While Section 27 of the Employment Act allows employers to schedule work on public holidays, doing so without consultation or reasonable notice may amount to an unfair labour practice under Article 41 of the Constitution.
Courts consistently say the need to balance business interests with employees’ personal and religious obligations, especially on a day as significant as Christmas.
Where an employment contract does not mention public holidays, the law provides a protective default.
“All gazetted public holidays are treated as holidays with full pay,” Mr Muri says.
In such cases, an employer cannot unilaterally compel an employee to work on Christmas Day without consent or a compelling operational necessity aligned with industry standards.
