Abstract

Keywords

Right of employees to disconnect; overtime regulation; workplace challenges of advanced technology; working beyond contractual hours; Employment Act (Amendment Bill) of 2022.

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1 Introduction

Achieving a proper equilibrium between the workplace and private life is crucial to enabling digital transformation's beneficial impact on employees' well-being. 1

 Johana Kambo Gathongo. LLB LLM LLD. Research Associate, Faculty of Law, Nelson Mandela University, South Africa. Senior Lecturer, University of Embu, School of Law, Kenya. E-mail: john.gathongo@gmail.com. ORCID: https://orcid.org/0000-0003-1165-2066.

 Leah Alexis Ndimurwimo. LLB LLM LLD. Associate Professor Nelson Mandela University, Gqeberha, South Africa & Fulbright Research Scholar, James E. Rogers College of Law, University of Arizona, Tucson, USA. E-mail: E-mail: leah.ndimurwimo@mandela.ac.za. ORCID: https://orcid.org/0000-0002-0305-2573.

1 Mankins 2017 https://hbr.org/2017/01/why-the-french-email-law-wont-restore-work-life-balance .

1 Mankins 2017 https://hbr.org/2017/01/why-the-french-email-law-wont-restore-work-life-balance .

Along with the exponential growth of portable networked wireless gadgets, this has been instrumental in driving changes in work-related behaviours. 4

4 Ágota-Aliz 2021 Studia Universitatis Babes-Bolyai Sociologia 29-50.

modern workplace. 9

9 Van Wijk 2023 https://www.askcody.com/blog/what-is-a-modern-workplace.

Consequently, employees found themselves working over and above their regular working hours. Accordingly, the practice meant that employees only physically leave their workplace premises but remain connected to their work-related duties by some technological tether. 11

11 Johnson, Robertson and Cooper Well-Being 35.

The research done by the World Health Organization (WHO) has revealed that the consistent connection with workplace duties, including even just the mere apprehension of such duties, has adverse effects on the health of employees. 12

12 WHO 2020 http://www.who.int/occupational_health/topics/stressatwp/en/ . The research findings show that the most stressful type of work involves making excessive demands on workers that are not matched with workers' knowledge and capacity, where there is little opportunity to exercise any choice or control, and where there is little support from others.

in anxiety and stress. 16

16 Emilie 2017 https://www.soulier-avocats.com/en/is-the-right-to-disconnect-about-to-become-an-effective-right-for-employees-in-france/?pdf=33887. Also see Thomée, Harenstam and Hagberg 2011 BMC Public Health 1-12.

2 The right to disconnect in other jurisdictions

The detrimental effects of the "always on" culture of permanent availability have prompted some European Union countries 18

18 These countries include France, Belgium, Italy and Spain, among others. Messenger 2010 Cambridge Journal of Economics 295-316. Also see Burke 2022 https://onlabor.org/the-right-to-disconnect-emerging-issues-and-ways-to-overcome-them/; Samuel 2018 https://www.telegraph.co.uk/news/2018/08/01/british-firm-ordered-pay-60000-french-court-breaching-employees/.

Subsequently, in Spain 25

25 In December 2018 Spain created a remote working law, which includes the right to disconnect to promote a proper work/life balance. The law requires employers and employees to agree on a specific time of day to limit all work-related communication.

protect the right to disconnect. Likewise, in Italy 27

27 Article 19(1) of Law No 81 of 22 May 2017 of Italy refers to the concept of "smart working" (lavoro agile) or flexible working arrangements for subordinate employees. This provision promotes flexible adaptation concerning working hours and location. It offers a framework for employees to carry out their duties from home or other suitable locations outside the traditional workplace. It ensures that employees maintain the same rights and protections as those working in an office. The aim is to foster a modern, adaptable workforce while safeguarding employees' rights, regardless of where they perform their work.

Article 24 of the Universal Declaration of Human Rights. 35

35 Article 24 of the Universal Declaration of Human Rights (1948).

New research approved by the International Labour Organisation (ILO) has shown that employees must have the right to disconnect from technological devices. 37

37 ILO 2017 https://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_544108/ lang--en/index.htm.

3 The adverse effects of post-work electronic communications on the safety and health of workers

The pervasive nature of "always-on" work is the primary trigger and accelerator of ill health, both mental and physical. 38

38 According to Trevelyan 2020 https://www.ibanet.org/article/7bba6da1-a70a-440c-8506-9c27134683bf one of the biggest impacts for companies would be the loss of employees doing unpaid overtime. This exists in many guises, from employees catching up on emails on the daily commute to workers staying late in the office to finish a project.

These conditions include anxiety, depression and burn-out among employees. 43

43 Becker, Belkin and Tuskey 2018 Academy of Management Proceedings 51-72. See Gilkerson, Anderson and Swenson 2018 Public Relations Journal 13-14 recounting an observation from a social media professional: "No job should expect you to be 'on' 24/7 unless you are a doctor which clearly, you're not. We are not curing cancer. No one will die if we don't answer an email until 9:00 a.m. the next day. Any job that

work-related ties by some management styles and practices eventually results in psychological harassment in the workplace. For example, in Japanese culture there is a term, "karoshi", which refers to those employees who tragically succumb to self-inflicted harm as a result of excessive work-related pressures. 44

44 McCurry 2017 https://www.theguardian.com/world/2017/oct/05/japanese-woman-diesoverwork-159-hours-overtime.

In addition, stress associated with work develops when employees encounter unmanageable demands, deadlines and pressures in their employment environment resulting in their having challenges and difficulties in developing coping mechanisms. 47

47 Challenger, Gray and Christmas Inc 2017 https://www.challengergray.com/press/ press-releases/are-you-digital-dictator.

4 Existing laws relating to working hours in Kenya

The standard working hours in Kenya are typically 52 hours per week, while the usual practice is to allocate 45 hours per week for regular work. 52

52 Cheruiyot 2023 https://intasend.com/payments/labor-laws-in-kenya-a-comprehensive-guide/.

subject to a maximum weekly working limit of 60 hours. 53

53 Park et al 2001 Industrial Health 250.

5 The scope of the right to disconnect under the Employment Act (Amendment) Bill, 2022

The Kenyan legislature is considering an amendment in terms of the Employment Act (Amendment) Bill of 2022 regarding the right to disconnect. One notable provision is the inclusion of provisions regarding this right. This article observes that the proposed amendments aim to enhance the work/life balance by granting employees the option of refraining from responding to emails or messages beyond their designated working hours.

The Bill under consideration has been viewed as a potential solution to the abovementioned problems and as seeking to enhance workers' work/life balance. 55

55 Section 27A(2) of the Employment Act (Amendment Bill) of 2000 (the Amendment Bill).

This right is defined as employees’ right to decline to receive communications or be contacted by their employers outside of the working hours designated by the companies' established policy. 56

56 Section 27A(1) of the Amendment Bill.

In cases where a company employs more than ten individuals, the proposed Bill will mandate the company to formulate the specified policy in collaboration with its employees or the relevant trade union representative, if appropriate. 58

58 Section 27A(3) of the Amendment Bill.

Employees who ignore work-related communications outside regular working hours shall not face disciplinary action. 60

60 Section 27A(6) of the Amendment Bill.

6 Challenges of the application and relevance of the right to disconnect in Kenya

Consideration of the purpose of the Bill raises the question of whether it is necessary to introduce new legislation.

Should the Bill be implemented, Kenya would emerge as the only African nation to do so and the first one throughout the entire region of the Southern Hemisphere to adopt such a legal framework. It is important to mention that if the law is enacted, Kenya might find itself in a state of isolation. Another question could be whether or not Kenya has thoroughly examined the comprehensive ramifications of the proposed legislation, along with its suitability, practicability and applicability to an economy like Kenya's.

While noble aspirations drive the Bill, this article observes that it has encountered significant resistance from a faction of employers. For example, the Federation of Kenyan Employers (FKE), a leading employer organisation, has expressed concerns and reservations over the proposed legislation. 66

66 Owino 2023 https://nation.africa/kenya/news/employers-oppose-bill-seeking-to-block-them-from-calling-workers-beyond-working-hours-4371590.

The authors contend that the main problem with bestowing the proposed right on workers through legislative initiatives is the absence of certainty, clarity and precise demarcation associated with the right to disconnect. As noted above, the proposed Amendment Bill stipulates that employers are permitted to contact employees in a work-related emergency only provided that the duty of addressing the issue falls within the purview of the employee being called. 68

68 Section 27A(3)(5) of the Amendment Bill.

In addition, the proposed amendment seeks to oblige employers to develop a policy outlining the conditions under which they are permitted to communicate with or contact their employees outside their designated working hours. The policy shall also have to specify the situations in which the employer might reject or disregard the employee's right to disconnect. However, the draft Bill fails to provide direction and guidelines about the specific limitations imposed in the policy and the circumstances under which employees may choose not to respond.

Furthermore, the proposed legislation puts the onus on employees to exercise the right to disconnect by granting them the right to ignore any

work-related communication outside of working hours and exempting them from any possible disciplinary action associated with exercising this right. 69

69 Section 27A(3)(6) of the Amendment Bill.

Similarly, a right framed in this manner will probably be ineffective in Kenya's current employment rights landscape. The current system of individualised complaints to the Labour Officer needs to do more to address the power imbalance between employees and employers. 71

71 Section 47 of the Amendment Bill.

The growing popularity of videoconferencing during the COVID-19 era led to the realisation that businesses could expand their services well beyond the geographical limits of the country where they have a physical presence. This expansion comes with different time zones across various countries,

which is why some meetings must be accommodated beyond normal working hours.

7 The epidemic of unrecorded, hidden and unaccounted-for overtime

Modern workplaces and homes are digital spaces. 72

72 Hawley 2023 https://www.reworked.co/digital-workplace/what-is-a-digital-workplace-definition-benefits-best-practices/.

8 A critique of the right to disconnect

The right to disconnect relates to a legal framework in labour and employment law that grants employees the right to avoid work-related contacts beyond their agreed working hours. 77

77 Section 27A(3)(5) of the Amendment Bill.

that has been amplified and intensified by the widespread acceptance of technology and the surge in remote work. The positive steps undertaken by the French government, alongside other pioneer nations such as Spain, indicate a genuine need to critically examine the adoption of digital technology in the context of the future of labour. 78

78 Lerouge and Pons 2022 ELLJ 450-465.

Although it is important to expose, condemn and prevent such oppressive behaviour by employers, the authors are of the opinion that it is redundant and arguably unnecessary to enact new laws relating to the right to disconnect, given that the current employment and labour law framework in Kenya already provides adequate protections. Accordingly, section 27 of the Employment Act currently stipulates the maximum permitted working hours and the corresponding overtime compensation. The Employment Act declares slavery or coerced labour to be illegal and punishable. 80

80 Sections 30(1) and (2) of the Employment Act of 2007.

A notable issue with the existing scope of the proposed legislation lies in its recognition of the right to disconnect as a key aspect but its failure to establish a corresponding obligation to disconnect. This imposes the burden of deciding to disconnect on an employee. Whereas the objective may be to empower employees by giving them a choice to disconnect or remain

connected, the situation is much more complex. This study argues that employees may, for example, feel pressure from their supervisors or have a personal ambition to advance their careers by being more accessible, which may lead them to choose to connect and reply to online correspondence outside of regular working hours. This might place those who choose to exercise their right to disconnect at a disadvantage while deterring others who otherwise would. To address this concern, it is recommended that the proposed legislation incorporate more explicit details about the requirements and, most importantly, shift the burden of disconnecting to the employer rather than the employee. In Germany 82

82 Froger-Michon and Jordan 2018 https://www.cms-lawnow.com/ealerts/ 2018/09/switching-on-to-switching-off-disconnecting-employeesin-europe?cc_lang=fr.

The Kenyan Amendment Bill provides that in the absence of a mutually agreed arrangement about work hours outside of the regular schedule, the employee can choose not to reply and disconnect, or the employee can decide to respond, in which case s/he is entitled to remuneration. This right is currently provided for under the provisions of the Employment Act of 2007 dealing with the scope of overtime regulation. The passage of the Bill into law would therefore be an unnecessary duplication of the law.

9 Conclusion and recommendations

The proposed amendment to the Employment Act aims to create and safeguard the entitlement of workers to disengage from work-related contacts beyond their designated work hours. Its objective is to address the escalating problem of staff burn-out. Persistent and uninterrupted electronic communication is slowly intruding into workers' free time, thereby affecting the delicate balance between their work and their personal lives. As a result, the proposed amendment attempts to balance the demands of a person’s work or career and personal life. This notion has become increasingly prevalent due to the growing popularity of remote work and the increased reliance on technology, which has increased employers' ability to reach out

to workers at any time, obscuring the distinction between work and personal life.

Even so, the draft Bill needs to be revised regarding its practicality and implementation. Firstly, the amendments impose drastic and harsh laws that severely restrict employers' power to supervise their businesses, and impose barriers to sound labour relations in Kenya. This article underscores the importance of not restricting employers' managerial power via law. The proposed amendments undermine the fundamental principles of freedom and the realities of the labour market while also intruding upon employers’ prerogative to effectively run their business from day to day. Furthermore, if enacted the Bill would establish two hubs of administrative authority, leading to discord and lack of discipline in the workplace.

This article highlights that a fundamental contradiction between flexibility and the right to disconnect may occur if the proposed legislation is enacted. Labour market specialists maintain that exercising and enforcing employees' rights to disconnect at certain times would lead to greater expectations and demands for complete responsiveness and engagement throughout contractual working hours. 86

86 Henshall 2021 https://www.bbc.com/worklife/article/20210517-can-the-right-to-disconnect-exist-in-a-remote-work-world .

The existing Employment Act and the ILO have established effective measures to regulate working hours and provide adequate overtime payment mechanisms. Furthermore, it is crucial to note that the General Wages Order already includes provisions for compensating workers for

working overtime. Moreover, the interaction between an employer and employee, both within and outside of working hours, is a matter of management and should not be subject to legislation. Overall, the CBA and workplace policies and practices may effectively address all the issues the Bill covers.

Given the preceding, achieving a healthy equilibrium is better than introducing a new law. Employers are responsible for ensuring their employees' well-being by managing the work environment and mitigating any hazards that may infringe on their free time and rest periods. Promoting a work environment that allows employees to exercise flexibility while simultaneously fostering the importance of maintaining a harmonious equilibrium between their work and private home life is extremely important.

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List of Abbreviations