IMPLIED DUTIES OF EMPLOYERS IN KENYA: WHAT EVERY WORKER SHOULD KNOW

When entering an employment contract, most workers focus on explicit terms like salary, working hours, and job responsibilities. However, beyond these written agreements, Kenyan labor laws recognize, implied duties, obligations that employers must uphold even if they are not explicitly stated in the contract. Understanding these implied duties is crucial for every worker in Kenya. They include:

1.  DUTY OF TRUST AND CONFIDENCE 

 An employer has a duty to treat employees with respect and consideration. The duty arises from the the outset of the employment until its termination. Phillips J stated in BAC Ltd Austin[1978] IRLR 322, that it is an implied term of contract that employers do not behave in such a way that it is intolerable for the employee who cannot be expected to put up with it any longer

        2.  DUTY TO PROVIDE WORK

No duty to provide work exists. The employer is not compelled to provide work where non exists. As was stated in Asquith J in Collier V Sunday Referee Publishing Co, "provided I pay my cook her wages regularly, she cannot complain if I choose to take any or all my meals out"

       3.  DUTY TO PAY WHERE THERE IS NO WORK  

 The employer has a duty to pay employees their pay and remuneration regularly regardless of there being work to perform or not. Where the employee remains in employment and is willing to work, they must be paid their salary if the reason for the unavailability of work is within the control of the employer. 

       4.  DUTY OF CONFIDENTIALITY  

There is an implied duty of confidentiality on an employer. The employer should not disclose to a third party, confidential information about the employees. Confidential information about employees includes information contained in their personal file such as their phone and addresses, health status, marital status, salary etc

       5. DUTY TO INDEMNIFY

The employer has a duty to indemnify the employee where the employee incurs expenses while in the performance of all official duties and for the benefit of the employer's business. 

       6. REFERENCES

The employer is under no duty to provide an employee or an ex-employee with a reference. There is an implied term that when the employer gives a reference, that the reference is fair, true and accurate. There is no duty that the reference be comprehensive or detailed. The employer has a duty to the recipients of the reference not to be misleading.

     7. EMPLOYER'S VICARIOUS LIABILITY

Where an employee causes injury to a third party in the course of employment, they will be personally liable. In addition, the employer may be vicariously liable to compensate the third party. Two reasons for holding the employer vicariously liable are, first, that the employer placed the employee in the position to cause the harm. Second, it is likely that the employee may not afford the costs of the same caused, while the employer may have the financial resources to do so or have insurance

The key issue for determination by the court is whether the act committed by the employee was one performed in the course of employment. The course of employment and the employee's wrongdoing is the nexus for determining vicarious liability by the employer.

In conclusion, implied duties of employers play a crucial role in ensuring fairness, safety, and respect in the workplace. While these obligations may not always be explicitly stated in an employment contract, they are legally recognized and enforceable under Kenyan labor laws. Every worker should be aware of these rights to ensure they are treated fairly and to take appropriate action if an employer fails to uphold their responsibilities.

 

 

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

 REFERENCES

Lecture notes, UON LLB, Labor Law