Employment Contracts in Kenya: Key Clauses and Legal Requirements
What every Kenyan employment contract must contain: statutory terms, probation, leave, notice, deductions, restraint clauses and lawful termination.
Read articleMental health has moved from a private concern to a workplace legal issue. Burnout, anxiety, depression and work-related stress affect productivity, staff retention and, increasingly, employers' legal exposure. Kenya's 2020 Taskforce on Mental Health described mental ill-health as a national emergency, and courts are paying closer attention to how employers treat staff living with mental health conditions. This article explains the legal obligations Kenyan employers have towards the mental health of their employees and offers practical steps to meet them.
Key takeaways
- Employers have a legal duty to provide a safe and healthy workplace, and "health" includes mental health.
- Discrimination against employees because of a mental health condition is unlawful under the Constitution, the Employment Act and disability law.
- Harassment, bullying and excessive workloads can lead to claims for constructive dismissal, unfair termination and damages.
- Employee health information is sensitive personal data and must be handled confidentially.
- A clear policy, trained managers and reasonable adjustments are the most effective risk controls.
The legal framework
The Constitution of Kenya, 2010
The Constitution sets the foundation. Article 41 guarantees every worker the right to fair labour practices and reasonable working conditions. Article 43 protects the right to the highest attainable standard of health, which includes mental health. Article 27 prohibits discrimination, including on the ground of health status and disability, and Article 28 protects human dignity. Employees can enforce these rights directly in the Employment and Labour Relations Court.
Occupational Safety and Health Act, 2007
Section 6 of the Occupational Safety and Health Act (OSHA) requires every occupier to ensure the safety, health and welfare at work of all persons working in the workplace. Employers must assess risks, put preventive measures in place and train staff. Work-related psychosocial risks, such as chronic stress, violence, bullying and unreasonable working hours, are part of the health and welfare risks employers are expected to manage.
Employment Act, 2007
- Section 5 prohibits discrimination in recruitment, training, promotion, terms of employment and termination, including on the basis of health status and disability.
- Section 6 requires employers with 20 or more employees to have a sexual harassment policy. Sexual harassment is a significant cause of psychological harm at work.
- Section 30 provides sick leave: after two consecutive months of service, an employee is entitled to seven days of sick leave on full pay and a further seven days on half pay in each period of twelve months, on production of a medical certificate. Many employers provide more generous sick leave by contract.
- Sections 41, 43 and 45 require a valid reason and a fair procedure for any termination, including termination on grounds of ill-health or poor performance linked to a health condition.
Disability law
Kenya's disability legislation recognises that a long-term mental or psychosocial condition can amount to a disability. Employers must not discriminate against persons with disabilities and are expected to make reasonable accommodation, such as adjusted duties or working hours, unless doing so would cause unjustifiable hardship.
Mental Health Act and the Mental Health (Amendment) Act, 2022
The 2022 amendments modernised Kenya's mental health law, shifting the focus to rights-based care and community services. They reinforce the principle that people with mental health conditions must not be discriminated against and are entitled to access care.
Work Injury Benefits Act, 2007
Where an employee suffers injury or a disease arising out of and in the course of employment, compensation may be payable under the Work Injury Benefits Act. Psychological injury following a traumatic workplace incident can form part of such a claim.
Data Protection Act, 2019
Information about an employee's health is sensitive personal data. Employers may only process it where necessary and with appropriate safeguards, should share it only on a need-to-know basis, and must keep medical records secure and separate from general personnel files.
Where employers face legal risk
| Situation | Possible legal consequence |
|---|---|
| Dismissing an employee because of a mental health condition | Unfair termination and discrimination claims; compensation of up to 12 months' gross salary plus damages for violation of rights |
| Tolerating bullying, harassment or a hostile environment | Constructive dismissal claims and damages for breach of the duty of care |
| Disclosing an employee's diagnosis without consent | Complaints to the Data Protection Commissioner and claims for breach of privacy |
| Failing to assess and control workplace stress | Enforcement by occupational safety and health officers and civil liability |
| Refusing reasonable adjustments | Disability discrimination claims |
Managing ill-health and performance fairly
Employers are entitled to manage performance and attendance, but must do so fairly. Where poor performance or absence may be linked to a mental health condition, the employer should:
- Meet the employee privately and sensitively to understand the situation.
- Seek medical advice, with the employee's consent, on fitness to work and possible adjustments.
- Consider reasonable adjustments such as flexible hours, a phased return, adjusted targets or a change of role.
- Allow a reasonable period for improvement or recovery and document the support given.
- If termination is considered, follow the full procedure under section 41: explain the reason, allow the employee to be accompanied, and consider their representations.
Building a mentally healthy and legally compliant workplace
- Adopt a written mental health and wellbeing policy, linked to your health and safety, anti-harassment and grievance policies.
- Include psychosocial risks in workplace risk assessments.
- Train managers to recognise signs of distress and respond appropriately.
- Provide access to counselling or an employee assistance programme, and check medical cover for mental health benefits.
- Monitor workloads, overtime and leave-taking.
- Set clear rules on after-hours communication, especially for remote and hybrid workers.
- Investigate complaints of bullying and harassment promptly and impartially.
- Keep health information confidential and limit access to those who need it.
Frequently asked questions
Can an employer in Kenya dismiss an employee for mental illness?
Not simply because of the illness. Dismissal on grounds of ill-health may be lawful only where the employee is genuinely unable to perform their role after reasonable support and adjustments, and only after a fair procedure. Discriminatory dismissal is unlawful.
Must an employee disclose a mental health condition to the employer?
There is generally no obligation to disclose, unless the condition affects safety-critical duties. Employers should create an environment where employees feel safe to share information so that support can be provided.
Is work-related stress covered by OSHA?
OSHA requires employers to protect the health and welfare of workers, and psychosocial risks such as excessive stress fall within that duty. Employers should assess and manage these risks like any other workplace hazard.
How W.O.A. Advocates can help
We help employers develop wellbeing and anti-harassment policies, manage sensitive ill-health and performance cases, and defend claims in the Employment and Labour Relations Court. We also advise employees on their rights. Speak to our employment law team, and read our guide on employment contracts in Kenya.