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Enhance labour rights for gig workers

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The rise of the global gig economy, where more people work as freelancers and side gigs, driven by increased access to smartphones and internet connectivity, has transformed the employment landscape in Kenya. This has heralded a new era of flexibility, autonomy and remote working.

Platforms such as Uber, Boltt, Jumia, and Glovo have empowered Kenyans to engage in self-employment and short-term work, which has greatly contributed to this economic transformation.

However, this shift has blurred the lines between traditional employment and independent contracting. This highlights the need for regulatory reforms to ensure fair treatment, job security, and social protection for gig workers, who often lack the collective bargaining rights typically afforded to employees under local labor laws.

Unlike traditional roles that offer fixed hours and benefits such as health care and paid time off, freelance work is characterized by its temporary, task-based nature.

Gig employees often handle multiple clients, using their own tools like the laptops of Upwork freelancers or the personal vehicles of Uber drivers. While this model offers income flexibility and access to multiple sources of income, it also raises complex legal questions.

Some of the legal issues arising include whether gig workers should have the same rights and protections as employees under Kenyan labor laws or whether they should remain classified as independent contractors with limited rights.

Classifying them as employees may compromise their independence, but classifying them as independent contractors is still problematic due to the significant control and integration exercised by the platforms that is not typical for contractors.

While the Kenyan courts have yet to make a final ruling on the legal status of gig workers, an employment tribunal recently addressed a related issue in Meta Platforms, Inc v. Motaung & Others (2024). Content moderators filed a petition against Mita and Sama, claiming unfair labor practices.

In an interlocutory ruling, the Labor Court ruled that the petitioners were employees of Meta, with the Saudi Arabian Monetary Agency acting as Meta’s agent, but the Court of Appeal overturned this decision, saying that the Labor Court had prematurely ruled on the disputed issues. The final decision on this issue will be pivotal in shaping Kenya’s legal framework for digital and freelancing.

In other jurisdictions, the legal location of digital services workers and freelancers has also been determined. The UK Supreme Court in Uber BV v Aslam (2021) classified Uber drivers as “workers” rather than independent contractors, taking into account Uber’s control over driver wages, prices, vehicle standards, acceptance rates and service delivery.

This decision gave drivers some employment protections under UK law, distinguishing them from full-time employees. Since the UK Supreme Court’s decision essentially hinges on Uber’s level of control over its drivers, the ruling could significantly impact Kenyan courts should a similar issue arise regarding the classification of gig workers.

The UK employment law framework differentiates between employees, workers and independent contractors; This is a distinction that Kenyan law lacks.

In Kenya, the determination of employment status is based on an assessment of the level of control exercised by the employer over freelance workers. When online platforms exercise significant control, courts may infer an employment relationship.

The main tests used in this evaluation include the integration test, which assesses whether the worker is an integral part of the employer’s business, and the economic reality test, which examines whether the worker operates as an independent entrepreneur or is dependent on the employer.

In addition, the concept of mutual obligation takes into account the obligations of both parties to maintain the business relationship over time.

To address the legal challenges of the gig economy, there are increasing calls for legislative reforms in Kenya that reflect the changing nature of work due to technological advances.

The Labor Court (Justice Biram Onjaya) emphasized this need in the Meta Platforms case, directing stakeholders to review existing laws relating to occupational health and safety for digital workers to ensure adequate protection.

The recent strike by taxi drivers further highlights the urgent need for reforms that balance the rights of temporary workers with the interests of employers. The goal is to support the growth of Kenya’s digital economy without imposing overly strict regulations.

One proposed solution is to amend employment law to create a new classification for gig workers, such as “worker” status in the UK, and give them access to some protections such as the minimum wage and social security while maintaining flexibility. Alternatively, classifying them as employees may provide broader protection but may jeopardize their independence.

Ultimately, any reforms must respect workers’ rights and promote the digital economy, perhaps through sector-specific regulations that clarify relationships between online platforms and gig workers, ensuring transparent payment systems and grievance procedures.

As the digital economy expands in Kenya, starting a national conversation about the legal definition of freelancing is essential. This dialogue will ensure that companies remain compliant while maintaining the flexibility that makes freelance work attractive.

A strong legislative framework would allow companies to operate more efficiently and reduce the risk of costly lawsuits and significant damages resulting from jurisdictional disputes.

Martin Munyo (Partner), Tabitha Weru (Senior Associate) and Amos Odhiambo (Associate) all at DLA Piper Africa, Kenya (KM Advocates)

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