Why proposed right to disconnect is bad labour legislation
Tuesday April 11 2023
If Nandi Senator Samson Cherargei has his way, it will soon become illegal in Kenya for employers to as much as send a text message to an employee on a work-related issue outside working hours.
The declared purpose of his Employment (Amendment) Bill 2022 is to provide employees with the right to disconnect from their employers and assure them of personal time and privacy.
The Federation of Kenyan Employers has reacted with incredulity to this legislative proposal, seen by many employers as the proverbial killing of a fly with a sledgehammer.
The Bill requires employers to create a policy specifying the circumstances under which they may contact employees outside working hours, situations in which the right to disconnect may be waived and the compensation payable to employees who work remotely outside working hours.
The right to disconnect is defined in the proposed law as an employee’s entitlement not to be contacted by the employer outside of working hours. An employee who has exercised such a right will not be reprimanded, risk termination of their employment or be subjected to any disciplinary action.
Any employer who fails to comply with the proposed law will be liable to a maximum fine of Sh500,000 or imprisonment for one year or both.
The proposed law was inspired by the lessons learnt from the remote working concept thrust upon the world by Covid-19 restrictions. Suddenly, remote working became the hottest invention after sliced bread. Soon enough, however, it spawned a myriad of hitherto unknown challenges, the main one being a frontal attack on the cherished concept of work-life balance, which is very popular among the younger generation.
Courtesy of a few slave drivers, employees started complaining that their employers understood working from home to mean that the employee was available at any time of the day and night to take and complete work assignments.
In some cases, this brought about family-related challenges and employee burnout.
Therefore, while the idea of using legislation to protect employees against the adverse effects of remote working and the unreasonable behaviour of some overly demanding employers is not new, it has not been embraced by many nations globally.
If the Senate enacts the proposed law, Kenya will become the only African country and indeed the first in the whole of the Southern Hemisphere to have such a law.
This unique statistic begs the question of whether we have explored the full implications of the proposed legislation and its appropriateness to an economy such as ours.
The proponents of the right to disconnect argue that the dramatic shift from the physical to the digital workspace has made employees permanently accessible to their supervisors who have failed to draw or see the line between official and personal time.
While this oppressive behaviour is to be condemned and discouraged, it does not require new legislation to regulate since the existing law already contains sufficient provisions.
The Employment Act already prescribes the maximum working hours and overtime payable. It criminalises servitude or forced labour.
Imposing more restrictions on already overburdened employers is hardly a smart way to revive an economy on life support.
Maema is a senior partner in the law firm DLA Piper Africa, Kenya. Email: [email protected]