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Kaplan & Stratton
+ 254 20 284 1000
9th Floor Williamson House, 4th Ngong Avenue, Upper Hill, Nairobi, Kenya
+ 254 20 273 4667
English, Swahili, various local dialects

Building resilience in a changing working environment

Sarah Kiarie, partner at Kenyan law firm Kaplan and Stratton shared her views on the changing dynamics of the workplace environment at the recent 4th African Labour Law Society Conference, Nairobi, Kenya 2021 virtual event.

Many of the trends and issues she spoke of are those that have arisen as a result of the Covid-19 pandemic.

She started by saying that a recent statement by an international government department that Covid-19 could carry on until 2025 was worrying.

“But at the same time there are things we have learned that will help us post Covid and will assist employers going forward,” she said.

With futuristic trends like remote working, issues around mental health and safety have emerged that were previously limited to factory workers.

Remote and hybrid working have given rise to trends like telecommuting, the wandering employee and digital nomads, said Kiarie.

“People can now work from anywhere, from a coffee house or even from the beach, as long as they are still able to deliver.”


Policy is crucial

She said one of the key issues with remote working trends like this is the need to anchor them with a policy that sets out how this is going to work.

There is also a need to look at which roles lend themselves to remote working.

In addition, remote working might not suit certain employees, depending on aspects such as personality and whether they need supervision to work effectively – among others.

One of the key issues with remote working is how to measure output, said Kiarie.

“How do you monitor and evaluate performance when employees are not in the workplace?”

This is causing a shift towards being results driven, rather than looking at how many hours employees are putting in.

The right to entry is another issue that needs addressing and including in the policy, “for example, when you want to set up an employee’s equipment they are using to do their work.”

Then there is the issue of what type of equipment the employer will be providing.

“We had a situation where an employee was demanding a generator, because he was living in an area where there were a lot of power cuts,” said Kiarie. In other cases employees were demanding high-level printers.

“If you don’t have a policy in place, it will be very difficult to assess what equipment you should be providing.”

In addition, employers cannot risk setting themselves up for a discrimination claim if they give certain tools to some employees and not to others. So it’s important for this to be included in the policy as well.

Tax perspective

Then there are issues relating to the insurance of the equipment if the employee’s home becomes a permanent establishment, and how will it be treated from a tax perspective?

“For example, is it a benefit or a rechargeable expense,” said Kiarie.

Other, more practical, issues to consider include the need to amend employee contracts, and how to manage aspects like annual leave and sick leave.

“Most employers have by now implemented systems that allow employees to apply for leave remotely,” she said.

Another challenge is that it is difficult to recruit employees and on-board them remotely and introduce them to the culture of the organisation.

Tax implications will also need to be considered if employees are working in another jurisdiction.

Client confidentiality and data protection also need to be addressed, especially if employees are working from places like a coffee shop or café, where other people might be able to see the documents they are working on.

Other aspects to consider include how to maintain the corporate culture when people are not physically sitting in the office, and how to maintain relationships – both between employee and employer and with clients.


Employee experience

“One organisation we know of is setting up online yoga sessions for employees to participate in, to maintain its culture and also for employee wellness,” said Kiarie.

With remote working, employees no longer have the benefit of gathering around the coffee machine, and neither is it as easy to clarify instructions that have been given.

On top of all this, remote workers often have to contend with connectivity issues, internet cuts, and electricity outages, she said.

“If problems like this arise, employees might need assistance with a backup plan.”


Vaccination concerns

Employers also have to contend with the vaccination issue. “Employers are required to provide a safe working environment, so how do you deal with someone who has refused to be vaccinated?” said Kiarie.

In Kenya currently there are no laws that specifically deal with this. Some employees are using religious or cultural beliefs as the reason why they are not ready to be vaccinated, which might present a challenge, she said.

“From what we are seeing, employers are not forcing employees to be vaccinated but are telling them that if they are not vaccinated they are not allowed to come to the office.”

Other measures include unvaccinated employees being required to “double-mask” and their movement within the office restricted.

“Going forward, I think, this issue will be dealt with on a case by case basis, because not all situations are the same,” said Kiarie.


Data protection

She said data protection is another issue that is coming up a lot.

“Kenya has a new data protection act that governs how data is processed, including that relating to employees and to clients. This would also apply to situations where data could be visible to other people.”

Organisations need policies in place to manage this and ensure that employees comply with the statutory obligations relating to data protection.

How employees experience the organisation and the changing role of management is another issue that is coming up.

It’s no longer a case of just giving instructions to employees and ensuring they are carried out, said Kiarie.

“Managers need to have relational and emotional intelligence and not just technical competency.

“And this is particularly challenging for managers who have been working in organisations for a long time.”

Among other challenges, employees are using social media as an outlet, because they are feeling lonely, she said.

“How do you manage that in a positive way and give them the freedom to express their company culture out there, while maintaining the requisite data protection and confidentiality?”


Futuristic trends

Then there are the younger generations of employees whose attitudes are different, and this also needs to be taken into account.

And finally, there is automation, and gig workers.

The latter is illustrated by the example of a company that outsourced their delivery department to the employees working there, and financed them to set up their own business, with the promise of giving them work, said Kiarie.

In other cases companies are outsourcing tasks to individual employees.

“This is going to change the future of work”

“So we need to have legislation that governs and protects gig workers,” she said.

These are some of the trends that have been accelerated by the Covid-19 pandemic, said Kiarie. “But this is what we are facing, and we need to address the issues to be resilient to dealing with the future of work.”


Statutory liability

After Kiarie had finished speaking, one of the conference delegates asked her, “To what legal extent does an employer have the right to monitor the work of a remote worker.

“Yes, the laptop belongs to the employer, but to what extent can an employer view the activity of the employee who is working remotely?”

Kiarie responded that, the employer has an obligation to protect the confidentiality of the data the employee is working with on their behalf.

“And they would be statutorily liable if in the course of the employee doing this work they were to breach the statutory provisions dealing with data protection.”

However, she said, this would need to be done in a framework that also protects the employee’s confidentiality.

“There is a need to balance the employer and the employee’s obligations.” She added that this will vary depending on the situation and the kind of data the employee is working on.

“The issue is also around the employer letting the employee know that they are being monitored and that they are doing it to comply with legal obligations, and not doing it in a sneaky way.”

Sarah Kiarie is an advocate of the high court of the High Court of Kenya and a partner at LEX Africa member Kaplan and Stratton in the corporate commercial department where she jointly oversees its M&A work.


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