The Employment (Amendment) Bill, 2023
Status Timeline
Proposed
Active now
Public Review
Pending
Debate
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Executive
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Final
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Consent and Notice Required for Transfers
Under the proposed Section 15A(4), an employer cannot transfer an employee without first:
- Providing written reasons for the intended transfer.
- Informing the employee of the transfer's implications on their contract of service.
- Notifying the employee of any planned support measures.
- Obtaining the written consent of the employee before effecting the transfer.
Mandatory Transport and Financial Facilitation
Where an employer initiates a transfer, Section 15A(4)(e) requires them to facilitate the employee's relocation by:
- Providing reasonable transport for the employee and their personal effects; or
- Providing a salary advance to cover relocation costs, recoverable in reasonable installments.
Note: This facilitation is not mandatory if the transfer is requested by the employee.
Ban on Punitive and Disciplinary-Phase Transfers
The bill introduces protections under Sections 15A(6) and 15A(7) to prevent unfair deployment practices:
- Employees undergoing active disciplinary proceedings cannot be transferred until all proceedings and constitutional appeal options are exhausted.
- Employers are explicitly prohibited from using transfers as a tool to punish employees.
Mandatory Corporate Transfer Policies
Under Section 15A(11), every employer is required to develop and implement a structured transfer policy. When making transfer decisions, employers must account for factors such as the employee's skills, duration of the transfer, family interests, sickness, and other extenuating factors to ensure the transfer is not arbitrary.
Bill No.
No. 62 of 2023
Gazette No.
Supplement No. 186 of 2023
Sponsor
Didmus Wekesa Barasa
Background
The Employment (Amendment) Bill, 2023, sponsored by Hon. Didmus Wekesa Barasa, MP, seeks to amend the Employment Act, 2007 (No. 11 of 2007). The amendment is designed to regulate the transfer of employees from one duty station to another. According to the sponsor's memorandum, the current lack of regulation has allowed some employers to utilize arbitrary transfers punitively, resulting in employee disorientation, dissatisfaction, and family disintegration.
Key Amendments
The bill proposes to insert a new Section 15A immediately after Section 15 of the Employment Act, 2007:
- Definition of Transfer: Defined under Section 15A(1) as the deployment of an employee from one duty station to another.
- Transfer Criteria: Section 15A(6) outlines that employers must consider the transfer policy, transfer criteria, duration of the transfer, length and frequency of transfers, employee skills, and employee interests (such as sickness, promotion, and extenuating factors).
New Obligations
Employers must adhere to several new operational requirements when initiating employee transfers:
- Consent and Transparency: Employers must provide written reasons, state contract implications, outline planned support measures, and obtain the employee's express consent.
- Relocation Support: For employer-initiated moves, employers must provide transport for the employee and their personal effects, or provide a recoverable salary advance.
- Corporate Policy: Every employer is required to develop and implement an internal employee transfer policy.
- Investigation Exceptions: Under Section 15A(9), an employee undergoing investigation for unlawful conduct may still be transferred pending the determination of the allegations, notwithstanding the general ban on transfers during active disciplinary proceedings.
Penalties
Section 15A(12) establishes criminal penalties for employers who contravene the transfer regulations:
- Natural Persons: Subject to a fine not exceeding KSh 500,000, imprisonment for a term not exceeding 12 months, or both.
- Juristic Persons (Corporate Entities): Subject to a fine not exceeding KSh 500,000.
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