What is annual leave?
Annual leave is covered under Rights and Duties in Employment of Part V of the Employment Act, N0. 11 of 2007. Annual leave is a period of time off work that an employee is entitled to after every 12 consecutive months of service with the employer. Under section 28 of the Employment Act, annual leave is 21 working days during which the employee is entitled to full pay. With an agreement between employer and an employee, annual leave can be taken in proportion though the law allows that one part of the agreed upon period consist of at least two uninterrupted working weeks. Annual leave is exclusive of public holidays, weekly rest days or any leave days stated by law (paragraph 9 of the Regulation of Wages (General) Order, subsidiary to the Regulations of Wages and Conditions of Employment Act).
Is annual leave always a set amount of time off work?
Not always. Generally the 21 working days per 12 month cycle for annual leave is a minimum as many contracts and collective agreements provide for annual leave of between thirty to forty-five days. On average Kenyan employees enjoy annual leave of 24 days.
Who is entitled to annual leave?
An employee who has worked for the same employer for 12 consecutive months of service is entitled to annual leave. This means that an employee on a temporary basis who has worked for 12 consecutive months is entitled to annual leave. Where the employee works for less than a year, the number of days will be reduced accordingly.
In general, temporary and fixed term employed workers enjoy all the rights of an employee working on permanent terms, except those that are excluded explicitly (such as entitlement to pensions) or by the nature of a short term assignment (such as annual leave).
What does the law state about an employer who accumulates or carries forward the annual leave of an employee?
In general the law requires that annual leave be taken within the 12 months consecutive months of service. But in the case where annual leave is taken on a pro rata basis, the law allows that the employer shall grant the two weeks uninterrupted part of leave to be taken within the 12 consecutive months of service, and the remainder part of the leave be granted and taken not later than 18 months from the end of the leave earning period which is the 12 months.
What happens if I, as an employer, terminate employment with an employee before the 12 month cycle is up?
In the case of termination of employment after an employee has completed two or more consecutive months of service of the 12 months leave-earning period, he or she is entitled to one and three-quarter days of leave with full pay for each completed month of service in that period to be taken consecutively.
At what rate is annual leave paid? Must I, as an employer, pay full pay to an employee?
An employee is entitled to full pay during annual leave. Also the Regulation of Wages Order (of various industries), subsidiary to the Regulations of Wages and Conditions of Employment Act, specifies that an employee proceeding on annual leave is entitled to payment by his employer. The order specifies various amounts to different industries. However, the amount specified in this subsidiary has been altered and increased with time depending on various industries and factors.
Can I, as an employer, pay an employee an amount of money in substitution for their annual leave?
Annual leave becomes payable only upon termination/resignation or expiration of a contract and if the employee has accrued a number of leave days. In this case an employer is compelled to pay an employee not less than one and three-quarter days of leave with full pay for every completed month of service in that period of leave earning period
Under what circumstances can an employee forfeit his/her annual leave?
An employee can accumulate leave or “carry over” leave when management has a reason to believe that their absence from duty may hinder production and or the service delivery process. But the accumulated leave must be taken within 18 months. Otherwise, an employee forfeits the accumulated leave.
What are the basic legal obligations of an employer towards a casual employee?
A casual contract of employment is provided for in section 2 of Employment Act, 2007, Laws of Kenya. A casual employee refers to an individual the terms of whose engagement provides for their payment at the end of each day and who is not engaged for a longer period than twenty four hours a day.
If one employs a casual staff member who continues to work for six consecutive days, the employee will be entitled to a rest on the seventh day as though he/she was a permanent employee.
Casual staff will however not be entitled to payment for any day that he/she has not worked unless they worked for six consecutive days within one week, in which case, they will be entitled to a rest day with full pay.The maximum period that one can employ a casual employee on a continuous basis is one month.
Unless it is inevitable, contingent upon the job to be performed and the period required for its performance, one should endeavour as far as possible to avoid engaging employees on casual contract terms since it generates legal and administrative challenges which if not well managed, could be costly to an organisation.
Find out about Minimum Wages in Kenya.