Section 9 of the Employment Act 2007 requires every employer to provide a written contract of service to every employee. An employer who fails to provide a written contract is in breach of the Act and at a significant disadvantage if a dispute arises, because ambiguities will be resolved in favour of the employee.
1. Identification of the Parties and Commencement Date
State the full legal names of the employer and employee, the employee’s job title and reporting line, and the commencement date. If there is a probationary period, state its duration clearly. Under established labour practice, probationary periods should not exceed six months without good cause, and any extension should be documented and agreed in writing.
2. Job Description and Duties
Define the employee’s primary duties and responsibilities. Include a general clause permitting the employer to assign additional duties reasonably connected with the employee’s role. A vague job description makes it difficult to hold an employee accountable or to justify disciplinary action.
3. Remuneration and Benefits
State the gross salary, payment frequency, and method of payment. List all benefits: housing allowance, transport allowance, medical insurance, pension contributions. State clearly whether the salary is gross or net. Ambiguity here is one of the most common sources of employment disputes.
4. Working Hours and Leave
Specify standard working hours and leave entitlements. The Employment Act provides for a minimum of 21 working days annual leave (Section 28), sick leave with full pay for the first seven days and half pay for the next seven (Section 30), three months’ maternity leave (Section 29), and two weeks’ paternity leave for male employees.
5. Confidentiality
Include a clause requiring the employee to maintain confidentiality of business information during and after employment. Define confidential information broadly to cover client lists, financial data, business strategies, and trade secrets.
6. Intellectual Property Assignment
If the employee will create any IP in the course of employment, include a clause assigning all such IP to the employer. Without this clause, ownership may be ambiguous under the Copyright Act and the Industrial Property Act, particularly for works created outside normal working hours.
7. Non-Compete and Non-Solicitation
Restrictive covenants must be reasonable in scope, duration, and geographic area to be enforceable. Draft them with enforceability in mind, not aspiration. A clause preventing solicitation of the employer’s clients for twelve months within Nairobi is far more likely to be upheld than a blanket prohibition on working in the industry.
8. Disciplinary and Grievance Procedures
The Employment Act requires a fair procedure before termination. Set out the disciplinary process in the contract or an incorporated employee handbook, including the stages of the process, the employee’s right to be heard, the right to representation at a disciplinary hearing, and the categories of misconduct that may lead to summary dismissal under Section 44 of the Act.
9. Termination
State the notice period required for termination by either party. The statutory minimum for monthly-paid employees is one month. Include provisions for payment in lieu of notice, return of company property, and the circumstances in which summary dismissal is available under Section 44.
10. Governing Law and Dispute Resolution
State that the contract is governed by the laws of Kenya and that disputes arising from it shall be referred to the Employment and Labour Relations Court. While this is the default position, stating it removes any ambiguity.
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