Navigating international employment laws is crucial for multinational companies. Employment laws vary widely between jurisdictions, requiring legal counsel to understand each region’s nuances. Non-compliance can lead to legal claims that can damage a company’s reputation. To highlight these differences, in this guide we focus on two jurisdictions, the nascent Democratic Republic of Congo and the well known Kenya
Hiring of expatriates
In Kenya, the Employment Act, 2007 (‘the Employment Act’) mandates fair and objective recruitment based on qualifications. Expatriates are required to obtain work permits under the Kenya Citizenship and Immigration Act, 2011, ranging from one to five years (Class C for professionals like engineers, Class D for permanent employment, and Class G for specific trades). Employers typically handle permit applications, demonstrating the need for skills unavailable locally through competitive hiring. In the DRC, ministerial orders designate jobs exclusively for Congolese and set limits on foreign employees per company and sector. Employers must verify job eligibility, seek ministerial approval, and secure biometric work cards, a work establishment visa, and a resident card.
Both countries prioritise local talent before considering expatriates, differing in permit processes, duration, and requirements.
The employment relationship
Both DRC and Kenya’s employment laws establish minimum benefits and entitlements for employees. Employers can offer more than the mandated provisions but must not provide less, as this would constitute a breach. Key benefits include:
Leave
- Kenya: 21 working days with full pay after 12 months of consecutive service to the employer.
- DRC: one day per month for employees with less than 10 years of service and two days per month for employees with more than 10 years of service.
Family leave
- Kenya: Mothers are entitled to three months of maternity leave with full pay, fathers are entitled to two weeks of paternity leave with full compensation, and both parents are entitled to one month of pre-adoption leave with full pay.
- DRC: Mothers receive 14 weeks of maternity leave, with two-thirds of their salary and contractual benefits in kind, while male employees are entitled to two days of paternity leave.
Sick leave
- Kenya: Employees are entitled to 30 days of fully paid sick leave annually, followed by up to 15 days at half pay for every 12 months of consecutive service.
- DRC: Employees can take up to six months sick leave with payment of up to two-thirds of their salary.
Medical insurance
- Kenya: Employers are not obligated to provide medical insurance, but employees must register with the National Hospital Insurance Fund (NHIF), which offers affordable health services. Employers deduct and remit monthly NHIF contributions from employees’ salaries. Additionally, the Work Injury Benefits Act 2007 mandates employer insurance for workplace accidents, ensuring employee protection.
- DRC: Employers are not required by law to provide medical insurance directly to employees. However, they must contribute to the National Social Security Fund (INSS), which covers sickness, maternity, and occupational injury benefits, among others.
Pension
- Kenya: Employers are not mandated to provide an employer with a pension. However, an employer is required to remit contributions to the National Social Security Fund (NSSF).
- DRC: Employers and employees contribute to the National Social Security Institute (INSS).
Housing levy
- Kenya: Employers are required to remit contributions to the Affordable Housing Levy as per the Affordable Housing Levy Act 2024.
- DRC: There is no national law mandating a housing levy or fund requiring contributions from employers or employees. However, some companies or sectors may negotiate housing allowances or benefits in employment contracts or collective bargaining agreements, varying by industry and terms of employment.
Working hours
- Kenya: A standard work week is 52 hours for daytime workers and 60 hours for nighttime workers. Overtime compensation rates are one and a half times the normal hourly rate for work done on weekdays exceeding the standard hours. This increases to twice the normal hourly rate for overtime on Sundays or public holidays.
- DRC: The standard work week is 45 hours. Overtime compensation rates are:
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- 30% for the first six hours over the standard weekly working time or its equivalent.
- 60% for subsequent hours.
- 100% for overtime worked on the weekly rest day.
Compassionate leave
- Kenya: The Employment Act does not specify exact compassionate leave days. It is generally at the discretion of the employer and may be detailed in contracts, policies, or collective bargaining agreements.
- DRC: The Congolese Labour Code allows for the following compassionate/occasional leave:
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- Own marriage: two business days.
- Child’s marriage: one business day.
- Death of spouse or first-degree parent: four business days.
- Death of a parent or second-degree relative: two business days.
From the above analysis, both countries have structured systems to support employee benefits, with Kenya having more comprehensive healthcare coverage through the NHIF and more clearly defined leave entitlements. DRC, however, offers generous sick leave and compassionate leave policies but faces challenges regarding coverage and accessibility.
Termination of the employment relationship
In both Kenya and the DRC, terminating an employee requires both substantive reasons (such as poor performance or misconduct) and procedural fairness (following proper termination procedures). This includes notifying the employee in writing, allowing them to defend themselves with evidence, providing a chance to be heard and accompanied, and offering an opportunity to appeal. Failing to uphold both fairness aspects may render the termination unfair.
Upon dismissal, employees in both countries are entitled to their basic salary until their last day of employment, a certificate of service, and any other benefits specified in their contract. However, in the DRC, employers must also notify the local labour inspectorate of employment contract terminations.
Conclusion
In summary, grasping these distinctions is vital for compliance and safeguarding reputation. Our detailed analysis underscores the significance of comprehending diverse employment laws across Africa, guiding our clients through comprehensive insights. Please see our previously prepared guides for further information: Labour Laws in Africa; Africa Remote Working Guide; Recruitment to Retirement, Kenya Edition; Guide to dismissals in Kenya; and Immigration Law Q&A.