This article seeks to shed light on Section 28 of the Employment act of Kenya (“the Employment Act”) which donates the statutory right to annual leave to Employees.

In fact, in my former role as an in house counsel, I discovered that most employees are not aware they are entitled to take leave for at least two (2) uninterrupted working weeks. Did you know this, or your ‘boss’ frowns if you are away from the office for too long?

Annual leave is one of the most highly and bitterly contested misunderstanding between employers, HR and employees (H.R). The prevalent nature of these disputes is exemplified in the numerous cases filed in the Employment and Labor Relations Court.

The Constitution of Kenya, our supreme law states at article 41 (1) that every person has the right to fair labor practices. This statement by the constitution is imperative considering employers have a higher bargaining power than employees. Employees must then be able to take time off from their work related duties and be able to rest. The European Court of Justice (‘ECJ’) in its decision in the case of ANGED V FASGA and Others (C-78/11) stated that the purpose of the entitlement to paid annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure.

In light of this, the Employment Act provides at Section 28 (1) (a) that an employee shall be entitled after every twelve consecutive months of service with his employer to not less than twenty-one (21) working days of leave with full pay. Section 28 (1) (a) of our Employment Act has striking similarities with Section 20 (2) of the Basic Conditions of Employment Act of South Africa(‘BCEA’) which states that , an employer must grant at least 21 consecutive days’ annual leave on full remuneration in respect of each annual leave cycle.

Our judgments in the Kenyan Employment and Labor Relations courts are quite scanty on this pertinent issue of annual leave. Seemingly, more focus has been placed on calculation of the awards in contention rather than an unequivocal interpretation of the Section 28 of the Employment Act.

On the issue of forfeiture, the law is quite clear that unutilized statutory leave which has not been taken beyond the 18 months (NOT 6) period stipulated in the Employment Act will be forfeited while terms of non-statutory leave are regulated by the agreement between the parties.

However, employers should ensure that the Employment policies do not offend the provisions in the Employment Act.

Should you need any assistance in relation to Employment Law, Policy formulation or the above subject matter please contact as at info@wka.co.ke