Kenya : Working During Public Holidays? What Does The Employment Law Say.

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KENYA

The holiday season is here again and many have made plans to take a much needed break after a fast and eventful week.

However, the reality is that some will have to work during the holiday.

If you are required to work on public holidays, it would be necessary to understand what the law recommends regarding the appropriate pay and compensation for work done on days you should otherwise be off.

The new Constitution defines three national holidays under Section 9.

These are Madaraka Day, marked on June 1, Mashujaa Day, which replaces Kenyatta Day and is observed on October 20, and Jamhuri Day, celebrated on December 12.

The Regulation of Wages and Conditions of Employment Act Cap 229 of the Laws of Kenya (now repealed but whose subsidiary legislation is still in force until replaced) lists these national days, and adds to them seven other days to be observed as public holidays.

These are New Year’s Day, Good Friday, Easter Monday, Labour Day, Idd-Ul-Fitr Day, Christmas Day and Boxing Day. Many of these are internationally recognized.

All public holidays are statutory rest days for employees.

If an employee has to work on any of the specified public holidays, they have to be compensated at double the normal hourly rate of pay.

Alternatively, the Public Holidays Act suggest that if by nature of his/her work an employee has to be on duty on public holidays, it is necessary that the situation is specified in the employment agreement, which should also spell out the rates of pay for work done on the public holidays or off days in lieu of.

The Public Holidays Act also defines specific religious holidays for Muslims and Hindus.

They are listed as Id-ul-Azha and Id-ul-Fitr which depend on the citing of the moon, and Diwali, which is decided by the Hindu calendar.

In addition to these public holidays, the Act also declares in Section 2 (4) that “The day in any year during which a general election is held following the dissolution of Parliament shall be a public holiday.” It further grants the minister power to declare any other day as a public holiday, either as a replacement of one of the listed statutory holidays, or as an addition.

Section 3 of the Act, which states: “The minister may at any time if he thinks fit, by notice in the Gazette, declare any day to be a public holiday either in addition to the days mentioned in the Schedule or in substitution for any of those days and either throughout Kenya or in any district, area or part thereof, and thereupon any day so appointed shall be a public holiday in all respects as if it were a day mentioned in the Schedule, in Kenya or the locality specified in the notice; and where, in any year, any day is so declared to be a public holiday in substitution for any of the days mentioned in the Schedule, such latter day shall in such year cease to be a public holiday in Kenya or the locality specified in the notice.”

The Public Holidays Act, under 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.

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.

The key issue though is that we all need to take a break from work once in a while as this allows rejuvenation and often unlocks potential for the good of the organisation. Working on a public holiday should only happen when it is absolutely essential.

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