Why proposed right to disconnect is bad labour legislation

If Senator Nandi Samson Cherargei has his way, it will soon be illegal in Kenya for employers to text an employee about a work-related matter outside of working hours.

The stated purpose of its Employment (Amendment) Bill 2022 is to give employees the right to separate from their employers and to guarantee them time and personal privacy.

The Kenya Employers Confederation reacted dubiously to this legislative proposal, which many employers viewed as killing a fly with a sledgehammer.

The bill requires employers to put in place a policy outlining the circumstances under which they can contact employees outside of working hours, the instances in which the right to disconnect may be waived and the compensation owed to employees who work remotely outside of working hours.

The right to disconnect is defined in the proposed law as the employee’s right not to be contacted by the employer outside of working hours. An employee who has exercised this right will not be reprimanded, and will not run the risk of being terminated or subject to any disciplinary action.

Any employer who fails to comply with the proposed law will be liable to a maximum fine of Sh500,000, one year’s imprisonment, or both.

The proposed law was inspired by the lessons learned from the concept of remote work that Covid-19 restrictions imposed on the world. Suddenly, telecommuting became the most important invention after slicing bread. However, it soon produced a myriad of hitherto unknown challenges, the main one being a direct attack on the cherished concept of work-life balance, which is so popular with the younger generation.

Courtesy of a few slave drivers, employees began to complain that their employers understood working from home to mean that an employee was available at any time of the day and night to take over and complete work tasks.

In some cases, this has resulted in family-related challenges and staff burnout.

Therefore, while the idea of ​​using legislation to protect employees from the negative effects of remote work and the unreasonable behavior of some overly demanding employers is not new, it has not been embraced by many countries globally.

If the Senate enacts the proposed law, Kenya will become the only African country and even the first in the entire southern hemisphere to have such a law.

This unique statistic begs the question of whether we have explored the full implications of the proposed legislation and its suitability for an economy like ours.

Proponents of the right to disengage argue that the dramatic shift from a physical to a digital workspace has made employees permanently accessible to supervisors who fail to draw or see the line between formal and personal time.

While this repressive behavior should be condemned and discouraged, it does not require new legislation to regulate it because the existing law already contains sufficient provisions.

The Labor Code already stipulates maximum working hours and overtime payable. It criminalizes slavery or forced labor.

Imposing more restrictions on already overburdened employers is not a smart way to revive an economy on life support.

Maema is a Senior Partner at the law firm DLA Piper Africa, Kenya. Email: Willia (email protected)