The management of human resource (HR) in a work place plays a key role in the success or failure of business. This therefore implies that there is need to have in place laws and regulations governing employer-employee relationships. Most HR professionals in Kenya are trained to have an understanding of these laws, regulations and a focus promote fair, safe and equal treatment of employees. An appreciation of the effective and efficient management of human resources echoed the enactment of the Employment Act, 2007 and in recent years the formalization HR policies and manuals aimed at not only enhance productivity, competitiveness and for the business but also protect employees from exploitation and abuse. These HR policies and manuals also have the legal effect of minimize business risks.
Ultimately, it would be unreasonable to have in a contract of employment that covers all aspect that would arise during employment. A contract of employment would not necessarily cover matters such employee behavior, attitudes and performance. In most cases, a contract of employment does not cover areas such as the company’s criteria for determining human resource needs, the selection, training, recruitment & promotion, compensation & benefits, procedures for dealing with discrimination/harassment, grievance resolution, criteria for transfer, rotation & career, performance management system, disciplinary measures, data protection among others.
Appreciating the above constraints, in addition to contracts of employment, companies have engrained a series of HR policies and manuals into employment contracts pursuant to section 5(7) (c) of the Employment Act, 2007; which provides that “an employment policy or practice includes any policy or practice relating to recruitment procedures, advertising and selection criteria, appointment, and the appointment process, job classification and grading, remuneration, employment, job assignments, the working environment and facilities, training and development, performance evaluation systems, termination of employment and disciplinary measures”. The grey area on whether HR policies and manuals formed part an employee’s contract has since been settled and discussed in cases such as Heritage Insurance Company Limited v Christopher Onyango & 23 others [2018] eKLR, Edah Cherono Maiywa v University of Nairobi Enterprises and Services Limited [2020] eKLR and Oyatsi v Judicial Service Commission (Petition E111 of 2021) [2022] among others. The general consensus is that in fact, HR policies and manuals do form part of an employee’s contract.
Section 5 (2) and (3) (b) of the Employment Act provide as follows– “(2) An employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice. (3) No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee- (b) in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment.” This provision of law is further in the Constitution of Kenya, 2010 at Article 10 which provides that national values and principles of governance; Article 20 which allows every person to enjoy the rights and fundamental freedoms in the Bill of Rights; Article 27 which provides for the right against discrimination; Article 41 which provides for the right to fair labour practices; Article 47 which provides for the right to fair administrative action.
Types of HR Policies that a Company may adopt
There are many types of HR policies and procedures that a business, (and its employees) may benefit from implementing over time, these include;
Data Protection Policy; employees should always be alive to the fact that they responsible for the use of information, assets and resources to which they have access and that the privacy and security of the employer’s clients’ data or business is important. This may include names, addresses, email addresses, dates of birth, identification numbers, medical records and bank details etc. This Policy binds all employees from disclosing any data or other information they may come across during their employment unless required to do so by law or in the good-faith belief such action is necessary to comply with an applicable law.
Sexual Harassment Policy; Section 6 of the Employment Act, 2007 provides that: (1)An employee is sexually harassed if the employer of that employee or a representative of that employer or a co-worker- (b)uses language whether written or spoken of a sexual nature;…or(d)shows physical behaviour of a sexual nature which directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee and that by its nature has a detrimental effect on that employee’s employment, job performance, or job satisfaction.” Section 6 (2) of the Act makes it a requirement for an employer to have as sexual harassment policy where it has more than 20 employees. In Kenya Union of Commercial Food & Allied Workers v Meru Central Dairy Co-operative Union Limited [2015] eKLR the Court found the respondent culpable for failing to have in place a Sexual Harassment Policy leading to harassment of a female employee.
Whistleblowing Policy; this policy is aimed at encouraging staff and personnel to disclose wrongdoing other employee or personnel assisted with the employee. The Policy further seeks to establish procedures for the reporting and handling of concerns regarding action(s) or suspected action(s) that is or may be illegal, fraudulent or in violation of any law, rule, regulation or policy, as well as any other matter that could cause serious damage to reputation of the employer.
Information Security Policy; business in their normal day-to-day activities come across a wide range of personal data. This calls for the designing of framework to manage the handling, storage and collection of such date by staff and employees. This policy is designed to ensure that all staff members/employees keep any protocols, remote access, password, encryptions, codes, confidential paper documents etc. are kept secure ensure and further sets out the procedures to be follows be followed by an employee in case of a breach.
Conflict of Interest Policy; whereas conflicts of interest are not uncommon in a business setting or necessarily illegal. They create situations that may need careful attention to prevent the presumption of bias or the likelihood of bias in the decision-making process. This policy requires staff/employees to declare any potential conflict of interest in a transaction and sets out the steps the employer would take to mitigate the situation.
This is not a conclusive write-up of the various types of HR Policies a Company may adopt. It is posted on this website for informational purposes only and should not be construed as a legal opinion. If you have any queries or need clarifications, please do not hesitate to contact Gregory Makambo, Partner, (gmakambo@makambolaw.com), Kelvin Mwaniki, (k.mwaniki@makambolaw.com) or your usual contact at our firm, for legal advice.