Globally, businesses rely on labour to run their operations. Labour is arguably a crucial part of the business environment alongside other factors such as capital.
It is for this reason that employers compete to recruit skilled labour and expertise relevant to their business model.
However, while recruitment and placement is the easy task, the business is faced with the challenge of ensuring that it complies with constitutional and legal principles such as the freedom from slavery and forced labour.
Fair labour practices demand that employees are compensated for the work done in the course of their engagement with the employer.
The Employment Act requires that employees work for reasonable working hours and for reasonable pay. The right to earn a salary is further espoused by the principle of equal pay for equal work. The contravention of these principles may lead to employers facing constitutional violation suits.
The right not to be held in slavery and servitude has a close nexus with Article 41 rights which speak to fair labour practices including fair remuneration and reasonable working conditions.
Businesses that seek to place themselves at the pedestal of human rights compliance must therefore ensure that their human relations departments are well versed with these legal principles and uphold them.
A case in point is the Spangler suit where the claimant was not paid his salary for four months. The court found that delay in the payment of remuneration to an employee leads to anxiety, distress and demoralisation. It reduces the employee to a beggar in the society and, hence lowering their dignity. This is akin to slavery.
While businesses may run into economic hurdles that necessitate delays in payment of salaries to employees, where such a delay is prolonged, the business may be found liable for subjecting the employees to servitude.
The Employment and Labour Relations Court sitting at Kericho has found that the withholding of an employee’s salary for a period of two years amounts to slavery and servitude.
Such actions equally amount to the breach of the right to human dignity that is protected under Article 28 of the Constitution.
Employers are also mandated to elicit legal labour from their employees which means that such should not be motivated by threats, force or coercion.
The employee should not be in bondage to perform their functions under a contract. Any circumstance that places the employee in a position where work is no longer a means to get arrears is considered servitude.
Equally, subjecting an employee to work without pay and the imposition of additional work load on such an employee to avoid situations such as redundancies amounts to forced labour.
Employers should therefore be keen so that their policies do not lead to the exploitation of employees’ labour and good will.
This can be avoided by paying employees’ salaries in time and ensuring that the pay earned is commensurate to the work done.
Business must strive to get feedback from their workforce on how they feel about their roles and workload to avoid subjecting them to servitude.
Some policies that uphold Article 30 include Anti-Slavery and Human Trafficking Policy. In some jurisdictions these policies are compulsory.
