A Critical Analysis of the Proposed Law on the Employees' Right to Disconnect in Kenya

Abstract

The right of employees to "disconnect" from work-related communications has emerged as a concern in employment laws in recent times. Many employees find it increasingly challenging to disconnect from their duties at the end of the workday, and in Kenya, this is no exception. In the contemporary era of advanced technology, employees are tethered to their workstations beyond regular working hours. Employers regularly request or direct employees to complete assignments, activities and other projects beyond their contractual working hours in modern workplace environments. This supplemental teleworking is often unpaid overtime. The practice significantly undermines employees' time for rest and privacy, jeopardises their safety and health, and hampers productivity and remuneration. Kenya has taken steps to address this increasing workplace hazard by proposing stringent regulatory measures to grant workers the right to disconnect from their workplace environment beyond the contractually agreed working hours. Although all employees deserve the right to disconnect, the question is whether the new legislation is necessary. This article analyses the recent draft of the bill that seeks to introduce the right to disconnect in Kenya in regard to its scope, efficiency and implications for employees. The article argues that the "right to disconnect" or "connect" is catered for under the current provisions of the Employment Act of 2007 in the scope of overtime regulation. The passage of the Employment Act (Amendment) Bill of 2022 into law in Kenya would, therefore, be an unnecessary duplication of the law.