Unpaid Leave Policy In Kenya & The Law

By Perminus Wainaina 

According to section 28 of the Employment Act 2007, the annual leave days is set for  21 working days which are fully paid excluding weekends and holidays.

Now, the issue of leave days without pay comes is in when we start talking of compulsory leaves, suspension without pay, unpaid leave of absence, and unpaid study leave among others.

The employment ACT only outlines 4 types of leaves which are maternity, sick, paternity and the annual leaves.

However there are several other types in the industry depending on an organization. So, there is no law that stops you from sending an employee on a compulsory leave.

A good example is the Communications Authority of Kenya (CA) which sent its director general Francis Wangusi on a compulsory leave few days ago to allow for investigations.

So as much as its not provided for in the employment ACT 2007, compulsory leave is still used in Kenya.

You should however pay the employee in full during this time because he/she is yet to be terminated from work.

What about suspension with no pay?

Is suspension a leave on itself?

Does the employment ACT provide for suspension of an employee in the first place?

The employment ACT does not give an outline on how you should handle suspension of an employee.

However, section 12 of the ACT says that a company with more than 50 employees must have a policy that clearly states how discipline should be handled including suspension.

According to the decisions that were reached from the previous cases in Kenyan courts, you will be acting against the law if you;
1. Suspend your employee without an organizational policy that clearly states on how to go about the suspension.
2. Fail to define the period of suspension when your employee is sent home on a suspension
3. Suspend your employee for more than six months
4. Fail to pay your employee in full, including allowances, while on compulsory leave

To sum it up…

As an employer, you should get more information regarding the employment leaves and other subjects from the employment ACT. They say ignorance is no defense.

For consultancy services, email pwainaina@corporatestaffing.co.ke
NB: Please note that this is a paid service.