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Kenya: The Employment (Amendment) Act, No. 15 of 2022

11 April 2022
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The Employment (Amendment) Act, No. 15 of 2022 (the “Act”) was assented into law on 4 April 2022, by the President, H.E. Uhuru Kenyatta.

The Act amends the Employment Act, 2007 (the “Employment Act”) on the general conditions of a contract of service.  Specifically, Section 9 of the Employment Act has been amended to include provisions with respect to the recruitment of employees.

Employers are now restrained from requiring prospective employees to provide any clearance certificates, which require payment to be made before issuance, unless the employer issues the employee with an offer of employment.

The Act further prescribes that once an employer issues the employee with an offer of employment, the employer may require the employee to avail various clearance certificates in accordance with Chapter 6 of the Constitution, which provides for leadership and integrity.

However, notwithstanding the above, the Act permits an employer to withdraw the offer of employment if, after providing the clearance certificates, the employee does not satisfy the requirements of employment by the employer.

Employers have increasingly required prospective employees to obtain and submit the clearance certificates, prior to the interview process. Clearance certificates include a certificate of good conduct obtained from the Director of Criminal Investigations, a certificate from Ethics and Corruption Commission, a certificate from the Kenya Revenue Authority, a certificate from Credit Reference Bureau and further, a certificate from the Higher Education Loans Board. Further, the relevant public entities will now be required to issue clearances to Applicants, within seven (7) days from the date of the Application, at no fee.

It will be necessary for employers to review their recruitment policies to factor in this new provision.

On a separate note, The Employment (Amendment) Bill 2021, which seeks to amend the Employment Act and introduce an employee’s ‘right to disconnect’, was unanimously passed at the second reading and has now been presented for the third reading. Our article on this Bill is available here.