Public Holidays, Work Hours, Overtime
What is overtime?
The law specifies normal number of working hours varied by industries. If an employee works in excess of normal hours per week as specified, the additional hours are treated as overtime.
What must I be paid for overtime?
Overtime shall be paid at the rates of one and one-half time hourly rate on weekdays, and at the rate of twice the basic hourly rate on Sundays and public holidays. There are different Regulations of Wages Orders in force, covering different sectors of the economy.
Can I be forced to do overtime?
Though for an employer to force an employee to work overtime may be termed as contravening on the minimum conditions of employment as set by the Regulation of Wages and Condition of Employment Act (Cap 229) of the Laws of Kenya which is taken as a criminal offence, still generally employers have the right to schedule overtime for their employees. Therefore employees can be asked to work a reasonable amount of overtime to complete a job. However, union contracts often restrict the authority of employers regarding overtime. Also in some profession such as nursing an employee may be required to work overtime to save life.
Is there a situation where I may not be paid for overtime?
The law does not openly specify on such situation, where a worker may not be paid for overtime at specified rates and instead be compensated by time off. On the other hand it stated the amount a worker is entitled to when s/he have worked on overtime.
What does the law say about work at short notice?
Kenya does not clearly provide for short term assignment.
What does the law say about lunch time/ tea time/ breaks?
Kenya does not clearly provide for rest intervals/breaks during working hours, however, it specifies the daily work limit to 8 hours a day.
What does the law say about working on weekends and special days?
Section 27 of the Employment Act deals with working days, whether they are weekends or special days. Section 27(2) provides that ‘notwithstanding subsection (1), an employee shall be entitled to at least one rest day in every period of seven days."
Therefore, the issue is not whether some days should be considered as weekends or special, as the Act clearly says that employees are entitled to at least one day of rest. This means that if an employee normally get Sundays off then Saturday should, following the above provision, be a full working day.
What is a rest day?
A normal weekly rest day is a day an employee is entitled to rest from work after working for six consecutive days.
When are the official public holidays?
Public/ National holidays (second schedule, par. 9, subsidiary to the Regulations of Wages and Conditions of Employment Act)
- New Year’s Day (Jan 1)
- *Good Friday
- *Easter Monday
- Labour Day (May 1)
- Madaraka Day (Jun 1)
- Mashujaa Day (Oct 20)
- Independence/ Jahmuri Day (Dec 12)
- Christmas Day (Dec 25)
- Boxing Day (Dec 26)
*These holidays depend on either Christian calendar.
** These holiday depend on the sighting of the Moon
Is an employee entitled to remuneration during public holidays?
Yes. Every employee is entitled to full pay of his or her remuneration for public/national holidays. Further, where employees work on public holidays as well as a normal rest day, they are entitled to payment at double their wage rate in addition to their normal wage.
However some regulations such as the Hotels and Catering Industry Order of Cap 229 provide for an employee who has worked on a public holiday to be given “time off with full pay within 14 days in lieu of the overtime payment.” If, however, an employee in this industry is required to work on a public holiday that falls on his/her rest day, the employee “shall be paid for the hours worked at twice his basic hourly rate and be given another day off in lieu of his rest day.”
In the agricultural industry, except for a stockman, herdsman or security guard, an employee required to work on a holiday will be paid overtime for the hours worked at twice the ordinary basic hourly rate.
When is the employer supposed to make the payment?
Generally payments in respect of public holidays, rest days or overtime, shall be made after the eventful day in the same way as remuneration for the worker is normally paid.
What happens if I am not paid?
If the employer fails to comply in the payments as per the provisions of the Act, then section 86 of the Employment Act provides for an employee who has a complaint against his/her employer on such matters to complain to the labour officer or lodge a complaint in the Industrial Court. At the same time section 87 of Employment Act and section 61 of Labour Institution Act specifies that a person (employer) who fails to comply with any of the provisions of the Acts for which no penalty is specified shall be liable upon conviction to a fine of not exceeding KES 50, 000 or to imprisonment for a term not exceeding three months or both.
What if the public holiday falls on a weekend?
The Public Holidays Act, Section 4, makes it clear that when a holiday falls on a Sunday, it is deferred to the immediate succeeding day that is not a public holiday. This simply means that the holiday is given on Monday, and should Monday also be a holiday, then Tuesday becomes the day to which the holiday is pushed.
Are there special rights for special groups of people (elderly, disabled, children?)
Kenya does not provide for special groups workers in terms of payment for public holidays working.