Bosses Barred From Forcing Employees To Work On Worship Day
The ELRC deemed unfair the hospital's decision to terminate her employment for failure to attend the meeting that coincided with her prayer day.
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The Employment and Labour Relations Court (ELRC) in Nairobi on Friday, July 14 ruled that it is illegal for employers in Kenya to force employees to work on their worship days.
The ruling was made after Scoline Anyango Ojung’a moved to court to sue Nairobi Womens Hospital, her employer, who terminated her on the basis of her religion.
Ojung'a had revealed to the court that she is a practising Seventh-Day Adventist (SDA), meaning Saturdays are considered her days of worship, or Sabbath Day in simple terms, in line with her faith.
A Seventh Day Adventist (SDA) church in Nairobi. /PEOPLE DAILY
“Consequently, Seventh Day Adventists do not work on this day. In order to observe this practice, the Claimant states that she asked the Respondent to excuse her from work on Saturdays," read the judgement.
Ojung'a had disclosed that she entered an agreement with her employer which allowed her to work the first Saturday of every month and after that allocate subsequent Saturdays in the month to her worship.
She further noted that she was willing to work on Sundays as the hospital was in operation seven days a week as an essential service provider.
"To compensate for the Saturdays that she was going to be off duty in any given month, the Claimant indicated her availability to work on Sundays since the institution works seven days a week," read the court papers.
On February 23, 2018, she sought to be excused from a meeting that was to take place the following day as the event not only clashed with her worship day but also threatened to interfere with church activities she had scheduled on that day.
As a result, she sent a text message to a member of her employer’s management team on the matter, only for her request to excuse herself from the meeting to be rejected.
Ojung'a thus termed the refusal to allow her to attend her worship day as a violation of her freedom of religion.
The ELRC deemed unfair the hospital's decision to terminate Ojung'a's employment for failure to attend the meeting that coincided with her prayer day.
"I have observed in the preceding parts of this decision, it is clear to me that the Respondent not only terminated the Claimant’s employment without valid reason but also violated the Claimant’s freedom from discrimination and freedom of religion," the court ruled.
The ruling set another precedent in terms of promoting a healthy work-life balance and aims to bar employers from intruding on the personal time of their employees at any given point.
On January 25, 2023, Nandi Senator Samson Cherargei introduced the Employment (Amendment) Bill, 2022 which sought to impose a heavy Ksh500,000 fine on employers or a one-year jail term, or both in the event they call them outside regular working hours.
The Bill sought to amend Section 27 of the Employment Act, 2007 to introduce ‘the right to disconnect’ by employees, effectively giving workers the power to ignore work-related calls, messages and emails during out-of-work hours.
It also pushed for employers to put in place a policy to explain circumstances when they may contact employees during out-of-work hours and specify the nature of compensation for employees who work beyond the regular working hours.
The bill also sought to bar punishment by employers on employees who fail to heed to their demands of working overtime.
“An employee shall not be reprimanded, punished, or subjected to disciplinary action if the employee disregards a work-related communication during out-of-work hours,” the proposed Bill stated, with the provision that such contact should be to address an emergency within the employee’s responsibility.
It also stated that in case an employer has no specific work hours with the employee if the employer contacts an employee, the latter shall not be obliged to respond and, if one chooses to, they shall be entitled to get compensation.
The Federation of Kenya Employers (FKE), through Executive Director Jacqueline Mugo, however, accused the Senate of micromanaging private enterprises and objected to the proposal to have employers develop policies to regulate phone usage by employees after hours, arguing that, if the phone belongs to the employer, employees are under obligation to answer.
