Status of employment peremptory in defining rights and duties both in statutory and common law on employment issues.
Employees have numerous statutory rights e.g. maternity leave , annual leave , sick off , pension , redundancy rights , termination notice , while Non-employees , whatever designation , do not enjoy any statutory and common law rights.
An employer has statutory rights to and from an employee.
EMPLOYEE: STATUTORY DEFINITIONS
Under the Employment Act , s. 2 , an “employee" means an person employed for wages or salary and includes an apprentice and an indentured learner; while an "employer" means any person , or public body or any firm , corporation or company , who or which has entered into a contract of service to employ any individual , and includes the agent , foreman , manager or factor of such person , public body , firm , corporation or company
A ‘contract of service’ is a common law conception. A contract exists , at its basic level , when a person does some work and another pays for the other person for that work.
Other Statutory Definitions
Under KPA Act , Cap 391 , an “employee" means any person in the service of the Authority
Under the NSSF Act , Cap 258 an “employee” means any person who has attained the age of sixteen years and who (a) is employed in Kenya under a contract of service; or (b) is ordinarily resident in Kenya and is employed outside Kenya (or partly in and partly outside Kenya) under a contract of service entered into with an employer who resides in or has a place of business in Kenya; or (c) is ordinarily resident in Kenya and is employed under a contract of service as master or a member of the crew of any ship , or as pilot , commander , navigator or member of the crew of any aircraft , where the owner of the ship or aircraft (or managing owner if there is more than one owner) or the manager resides in or has a place of business in Kenya: Provided that “employee” shall not include any person who has not attained the age of eighteen years and who (i) is undergoing full-time instruction in a school , or in any such place of education or training as may be prescribed for the purposes of this definition , or who is an apprentice; and (ii) is not in receipt of wages which provide him wholly or substantially with a livelihood;
Tax Statutes – Income Tax Act , Cap 470
Under s.2 , a "contract of service" means an agreement , whether oral or in writing , whether expressed or implied , to employ or to serve as an employee for any period of time , and includes a contract of apprenticeship or indentured learnership under which the employer has the power of selection and dismissal of the employee , pays his wages or salary and exercises general or specific control over the work done by him; and for the purpose of this definition an officer in the public service shall be deemed to be employed under a contract of service;
CAP 234: TRADE DISPUTES ACT
“Employee" means , subject to section 3— (a) any person who has entered into or works under a contract with an employer , whether the contract is for manual labour , clerical work or otherwise , is expressed or implied , is entered into orally or in writing , and whether it 's a contract of service or apprenticeship or learnership , or a contract personally to execute any work or labour; and (b) any person who has entered the employment of or is employed by the Government or any public or local government authority;
Who is an Employee then?
An employee works under a contract of service , not a contract for services. Unprotected persons (e.g. independent contractors , self employed persons) work under a contract for service.
Contract of service defined under the Employment Act , 2007 as “an agreement , whether oral or in writing , and whether expressed or implied , to employ or to serve as an employee for a period of time , and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;”
Review of legislation indicates this essential requirement – requirement that a contract of service is necessary for an employment relationship to exist
Tests from Hyde: Who is an Employee?
- a tenant who pays a portion of his earnings as rent;
- the relationship of a garment sewer , to the clothing manufacturer who has contracted actual production to a contractor;
- the relationship of a janitor to the owner of the building she cleans;
- the relationship of a physician to the insurance company that reimburses her for her services;
- the relationship of a farm worker to the restaurant chain that buys the produce;
- the unquestionable employees , who choose for strategic reasons to characterize their relationship with their employer (say , a restaurant) as something other than a contract of employment.