A Study of inequalities emerging from the 2007 employment laws
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The new Kenyan labour laws are constantly frustrating Kenyan employers as they continue grappling with negative effects of implementing the laws. 1 While this is seen as an advantage to employees who, almost always, have lower bargaining power compared to the employers. It is indeed a fact that changes have occurred within the local job market over the past few years as a result of structural adjustment, liberalization of the economy and technological innovation which called for the review of labour laws. The review of National Labour Laws have been indeed a concern to both the government and the people for a long time. However, the mam1er in which these laws were reviewed remains questionable.2 This dissertation seeks to assess and address the issue of unequal protection of employees and employers under the current employment laws in Kenya. The right of equal protection by the law is the right of all persons to have the same access to the law and courts, and to be treated equally by the law and courts, both in procedures and in the substance of the law.3 There are rising complaints by employers as well as employment law advocates that indeed employment has become a costly affair where terminating an employee is a costly process and failure to follow it leads to a huge penalty.4 This clearly demonstrates a situation of unequal protection by the law between employers and employees where the employees are more protected than the employers. The main areas on which this dissertation focuses are on the issues to do with service pay which has not been adequately provided for, laws on termination as well as suspensions. The Employment Act 5 provides that an employee whose contract of employment is terminated upon the issuance of a termination notice is entitled to service pay for every year worked at such rate as shall be fixed. The Act does not provide who fixes the rate of service pay, however, the courts have applied the rate for calculating redundancy to service pay. The Act also continues to list the exceptions to service pay in Kenya. The exceptions to service pay are compulsory to all employers which renders the provision for service pay obsolete.