In Kenya, the rights and duties of the employer and employee are clearly set out. Below is a detailed explanation.

DUTIES OF EMPLOYER

They duties of employer are set out under Statutes and Common Law. They include the following:
1. Accord employee respect or act in good faith to employee.
2. To remunerate employee
3. To indemnify employee for any expenses incurred by employee in the course of duty
4. To employ safety of employee at work
5. To provide work
6. To provide a weekly rest-day
7. To make provisions for leave
8. To make provisions for maternity and paternity leave
9. To make provisions for sick leave
10. To make provisions for housing
11. To provide wholesome water at work place
12. Where expressly agreed, to provide food at the work place
13. To make provisions for medical attention

1. Respect

This is a mutual duty required to continue for so long as contract of employment exists. For so long the common law was reluctant to impose any significant duties on employers except in regard to safety. In recent time however there have been some changes reflecting societal change in reflections and expectations. In Wilson –vs- Racher
(1974) ICR 428 Edmond Davies –LJ- opined
“We have by now come to realize that a contract of service imposes upon the parties a duty of mutual respect. It is now accepted that employers must act in good faith towards employees so that for instance an employer’s arbitrary expression of his contractual duties or unilateral changes in the most basic terms of employment have led on occasions to liability on unfair dismissal.”

This has occurred in instances where employer expressly requires employee to resign or face dismissal or when he changes the terms and conditions of employment in some fundamental way which leaves an employee with no chance but to resign. This is traceable in the case of Gerishon Majanja –vs- Caltex Oil Ltd. Demotion unless resulting from misconduct may as well have that effect (unfair dismissal)

In Western Excavating (ECC) Ltd –vs- Sharp (1978) QB 761, it was held that for liability to arise, evidence is needed that the employer is guilty of conduct which shows that he did not intend to be bound by one or more initial terms of contract. The essential terms are said to include the essential terms that employer will not seek to destroy the parties mutual trust and confidence for instance by constantly changing essential terms to his/her detriment.
Threatening to dismiss an employee if he/she does not accept such changes is also within the rule. In United Bank Ltd –vs- Akhtar (1989) IRLR 507, the employee worked in Leeds under a contract which entitled the bank to move him anywhere in the country. He was officially told on a Friday that he was to begin working on the following Monday in Birmingham. His request for more time for urgent family reasons was rejected and his pay was stopped. He resigned and sued. The problem facing the tribunal was that the bank seemed to be within its contractual rights to order him to move. But his claim was upheld for the reason that there was an implied term, that he would be given reasonable notice, breach of which brought the bank within the Western Excavating rule and that the bank’s conduct was simply unreasonable and in breach of duty of mutual respect.

This was also the result in the case of Warner –vs- Barbers Stores (1978) IRLR 109 where employer refused to give employee time off to tend domestic crisis.

The recent developments indicate that the duty has been invoked in instances of sexual harassment at work. In the case of Insitu Cleaning Co Ltd –vs- Heads (1995) IRLR 4 A

manager’s greeting in these terms, “hi you big tits”, to a female employee twice his age was held an act of gross indecency and breach of duty to respect employee.

2. Remuneration

An employer is under duty to pay salary and wages even if he does not provide any work. The worker’s right to payment depends on the express or implied terms of the contract. This point was emphasized in the case of Devonald –vs- Rosser & Sons (1906) 2 KB 728

The only exceptions to this rule are:
1. If under contract of employment it is an express or implied term that when there is no work the employee will not be paid.
2. There is reasonable, certain and notorious custom that when there is no work to be done the employee is not paid.
Section 17-18 of the Employment Act spells out the duties of an employer with respect to remuneration. S.17 provides that remuneration must be paid to an employee directly and in a Kenyan currency which payment must be made on a working day and must not be made where intoxicating liquor is sold or readily available.

S.18 provides when payment must be made: In case of a casual employee, he must be paid at the end of the day. For a person employed for more than one day but less than one month, he must be paid at the end of that period. For a person employed for one month remuneration is at the end of the month.

3. Indemnifying an employee

Usually there is an express agreement and where there is none, it is implied that the employer will reimburse the employee any money reasonably incurred in the course of employment. The employee must however have authority to do so and is reimbursed such amount as is expended in course of employment.

4. Safety at work

This is the most extensive employer’s duty and is imposed by legislation and common law. Breach can result in suits in negligence by employee or can attract Criminal liability under relevant statutes (Occupational Safety and Health Act 2007). The duty to ensure personal safety of employees is part of duty of care. It is intended to ensure that employees are provided with a safe working environment and that they are compensated for any injuries sustained in the course of employment.

Subject to the tests in law of tort relating to negligence the duty of care can and actually is threefold:
(a) Provide safe plants and appliances, so that all equipment must be safe.
(b) Provide a safe system of work i.e. all factors which concern manner in which work is to be done must constitute a safe work place e.g. layout of plant like fire escapes in industry, warnings like fire alarm and protective clothing in factories.
(c) To engage reasonably competent employees so as to ensure safety of fellow employees.
With respect to safety at work Swanwich –J- in the case of Stokes –vs- Guest Keen & Nettleford (1968) 1 ELR 1976 observed as follows:
1. That positive steps must be taken to ensure safety in light of available knowledge
2. Employer should follow current recognized practices relating to safety.
3. Where there is developing knowledge with respect to safety, the employer must keep a breast with respect of such knowledge.
4. If employer has greater than average knowledge of the risk, he must take more than average precaution.
In terms of S.10 of the Work Injury Benefits Act, in case of death or serious permanent incapacity, an employee is entitled to compensation whether or not he was in contravention of statutory provisions or contract of service, so long as death or injury arose while in course of doing his work.

5. Provision of work
Once employed an employee has a right to work. This implies that at a broad level a right not to be discriminated at work place on any ground. The question arises - is the employer obliged to provide work?

The question was addressed in the case of Langston –vs- AUEW (1974) 1 All ER 180. Mr. Langston was a skilled man who had been a union member for many years and at some point a shop steward. He disapproved of the “closed shop principle” i.e. to work in an industry you must belong to a certain Trade Union. The Union sort to have employer get rid of him. The Employer had no quarrel with him personally and did not wish to have himself held liable for compensation for “unfair dismissal”. They suspended him on full pay. Langston argued that, by suspending him, the employer had breached his contractual obligation to provide him with work.
Lord Denning held that: employee had a right to work and should be given opportunity to work when available and is ready to do it.
On a general principle no such right exists. For instance, as the Court observed in Collier –vs- Sundry Referee Publishing Co. (1940) 2 KB 647 - ‘provided I pay my cook her wages regularly she cannot complain if I choose to take my meals outside.’
If there is a right to work so as to create a duty it may be no more than a right to seek injunction against arbitrary discrimination at the work place and perhaps when the worker may be excluded from his occupation. So that unless an employer has bound himself to provide work, he cannot be liable for failing to provide work as it would be tantamount to performing a miracle.

In Felix Marete Njagi –vs- A-G, HC Misc Civil Application No. 688 of 1986 (Unrptd) the labour question descended from a constitutional point of view. Marete was denied his salary for 2½ years for allegedly being involved in activities disrupting public interest. He was not formally dismissed but had no pay.
The Court had no difficulty in finding that subjecting a person to a period of 2½ years without work and pay and freedom to seek alternative employment amounted to mental torture and therefore inhuman and degrading treatment contrary to Section 74 of the Constitution (as it then was).

6. Weekly rest
S.27 of the Employment Act obliges employers to provide employee with a day of rest in every working week.

7. Provisions for leave:
S.28 Employment Act, enjoins employers to give employee annual leave with full pay. S.28 (1) (a) an employee is entitled to leave of not less than 21 days after every 12 consecutive months of service.

8. Provisions for maternity and paternity leave

S.29 (1) Employment Act, enjoins employers to give a female employee three months maternity leave with full pay.
S.29 (8) Employment Act, enjoins employers to give a male employee two weeks paternity leave with full pay.

9. Provisions for sick leave
Section 30 (1) provides that ; after two consecutive months of service with his employer, an employee is be entitled to sick leave of not less than seven days with full pay and thereafter to sick leave of seven days with half pay, in each period of twelve consecutive months of service, subject to production by the employee of a certificate of incapacity to work signed by a duly qualified medical practitioner or a person acting on the practitioner’s behalf in charge of a dispensary or medical aid centre.

10. Housing
Under S. 31 an employer is under duty at his expense to provide reasonable housing to his employees where he does not do so, he can pay his employee house allowance.

11. Wholesome water
S. 32 requires provision of sufficient supply of wholesome water for the use by the employees at the work place.

12. Food
Under S. 33 where there is express agreement, the employer must ensure employees are properly fed and provided with sufficient cooking utensils and proper means of cooking.

13. Medical attention
Under S. 34 (1) an employer shall ensure the provision of sufficient and proper medicine for his employees during illness and if possible, medical attendance during serious illness.

DUTIES OF EMPLOYEE
These are not spelt out in any statute. Employees are surrounded by duties spelt out in contracts of employment and Common law. Judges had in the past to lay out standards of behaviour expected of an employee when deciding whether an employer was entitled to summarily dismiss an employee, sue him for damages or deduct his pay for any losses occasioned to the employer.

The duties are: Obedience, Competence, Care and Good faith. In England the position has changed so that certain duties are statutory under the Employment Protection (Consolidation) Act).

1. Obedience
Courts deem contracts of employment as contracts where one party gives orders and the other obeys. Wilful refusal to obey lawful and reasonable orders is a breach of contract which may jeopardize one’s employment or give liability to damages. Wilful refusal connotes intentional repudiation of authority which makes it difficult for employment relationship to continue. Such refusal may be oral or by conduct so that a worker is strictly liable for consequences of his disobedience. Abuse or rudeness by employee may amount to repudiation of employer’s authority. A great deal depends on the words used and accepted level of give and take in the circumstances. In Reaper –vs- Webb (1969) 2 All ER 216 a gardener told to put in some plants shortly before the end of the day refused to do so and informed his employer that he could not care less about “your bloody green house and your sodden garden.”It was held particularly in view of previous complains about the gardener’s insolence, that this behaviour may make continuance of that relationship impossible and his summary dismissal was justified.

In Wilson –vs- Racher (1974) ICR 428 the Court held that a single outburst of bad temper will not usually be enough to end contract usually if the employee was provoked.

In Laws –vs- London Chronicle (1949)2 All ER 283 the Court decided that disobedience arising out of inadvertence or misunderstanding would not suffice to terminate contract.

The Employee is allowed to disobey orders which are unlawful or unreasonable. This arises where employee is asked to do something he was not called in to do. Essentially this is breach of contract and is unlawful. Whether an order has the effect o being unlawful depends on how the employee’s contract was written out. Hence, the importance of written job specification in the contract of employment. In absence of such specifications, custom and practice may help in defining employees job specification. An employee is bound to take such duties as are reasonably incidental to those expressly agreed.

In Gourse –vs- Durham County Council (1972) All ER held: that school teacher’s duties extended beyond classroom teaching and in absence of anything to the contrary extended to supervision of students at meal time.

2. Competence
The law expects an employee to do with reasonable proficiency the job he has intimated or is employed to do and for which he has implied to do. To justify dismissal, an employer must show employee’s incompetence has or would cause material loss or in some important respect the employee fails to meet requirements of his job.

In Jackson –vs- Invicta (1987) 2 All ER 301 Held: employer could only escape liability for wrongful summary dismissal if he could prove a degree of incompetence so great as to make it impractical to keep employee on job.

3. Duty of care
In Superlux –vs- Plaisted (958) 1 All ER Court Held: that an employee must take care of his employer’s goods and interests as if they were his own. A commercial traveller was held liable in damages because he did not take care of employer’s goods out of the van in which he was travelling into his house which in the circumstances would have been inconvenient but safer than leaving them in the van from which they were stolen. This is a high standard and arguably unjustifiable given that there is no corresponding duty on employer to safeguard employee’s goods and interests. In Edwards –vs- West Hertsfoshire Grp Hospital Management Committee (1971) All ER the court decided that there is no corresponding duty on employer to take care of employee’s goods.

The employer will need to show some material loss or damage before exercising the right to claim material damage. In Jalater Bank –vs- Ahmed (1981) IRLR a branch manager of the plaintiff bank was held liable in damages for not making proper inquiries about credit worthiness of certain customers as a result of which they defrauded the bank large sums of money.
Careless must be judged in the light of what may fairly be expected from an employee. Higher standards may be expected from professional experts e.g. doctors, engineers etc.
It is also a factor to be considered whether the loss is caused partly by fault of an employer e.g. failing to provide instructions or supervision so that the fault will accordingly reduce the claim of employer.

4. Duty to act in good faith
Common law requires employees do their work with honesty and integrity and to avoid situations where their financial or other interests are incompatible with those of the employer. Certain conflicts of interests are unavoidable in labour relations. It is for that reason that demands for pay rise and threats of strikes are not regarded as breach of duty to act in good faith. Duty case is set out in negative terms of not to steal or reveal trade secrets.

A question arises as to what are minimum obligations of this duty. Some useful guidelines were spelt out in Secretary of State for Employment –vs- A.S.L.E.F (1972) S.E.R 19 the case arose in Industrial Relations Court to order a ballot or cooling off period in event of a strike or irregular industrial action short of a strike which threatens national economy. Irregular industrial action was described as interference with the supply of goods and services by a group of workers some or all of whom were in breach of their employment contracts. The secretary applied to Court for a ballot order because rail men were working against the rule of acting irregularly. The problem before the Court was whether, the men who claim to be following employer’s instruction could at the same time be breaching employment contract?
Lord Denning stated that in construing, the following must be borne in mind: The rules must be construed reasonably. They must be construed in usual dealing and the way they have been applied in practice. In his view when rules were so construed the railway rules could work effectively and efficiently. He thus stated “If some of those rules were construed unreasonably the system was in danger of being disrupted. It is only when they have construed unreasonably that the system grounds to a halt. It is a clear breach of contract on the part of employer to first construe the rules unreasonably and put that unreasonable construction in practice.”

With respect to business interests and secrets, the case of Sinclair –vs- Neighbour (1963) All ER is very instructive. In the case, a shop manager who knew his employer was not coming to take money from the tin borrowed $15 without permission leaving a sign IOU and returned the money the following day. The employer dismissed him. The Court upheld the decision and stated that even though the employer was not out of pocket, the employee had demonstrated he was a bad risk because he had violated a basic rule of employment. It was upon him as a manager to keep the till inviolate.
The employee must look after his employer’s client interests on behalf of his employer. For instance, he must not approach his employer’s customers while still in service for the sake of making business with the customers for himself.

In Norman –vs- Britton (1972) All ER 280 an employee’s use of confidential information about his employer’s customers in setting up his business was held to entitle his employer to all the profits of that business. An employee risks dismissal if he does not pass on to his employer of any knowledge he may have of any substantial dishonesty among other employees especially if he is in a position of responsibility.

In Austwick –vs- Midlands Rly A union official wrote to fellow employee demanding that he should apologize for reporting a fellow employee’s theft to his employer. Held: his behaviour was intimidatory and condoned dishonesty hence the dismissal justified.

Courts have been reluctant to accept that what a man does in his own time is of any employer concern but in certain peculiar circumstances they may be bound to accept employee’s liability. However, some of his activities may be harmful to the employer directly or indirectly. So that violent and dishonest behaviour out of work may be likely to suggest his unfitness for office or to damage employer’s reputation as if it took place at work. The same may be drawn of conduct which is immoral or socially unacceptable. In Clouston –vs- Corry (1906) AC 122 a company Manager was held to be properly dismissed after a conviction of drunk and disorderly in hotel and using obscene language in presence of women. In Orr –vs- University of Tasmania a married professor’s dismissal for seducing a female student was upheld.

Changes in public standards must be taken into account in considering the old cases. In Myers –vs- Mono (1970) 2 All ER 177 dismissal of a manager accused by employer of being a great pitcher of bottoms and breasts was held unjustified when found to have pitched only two women on the bottom in isolated circumstances.

NOTE: Conditions of employment are just the rights and duties in employment contract. Section. 26 of the Act which declares the minimum working conditions as those contained in part V and VI of the Act.