FORFEITURE OF UNUSED LEAVE DAYS IS NOT THE BEST WAY TO ENSURE EMPLOYEES TAKE LEAVE

In an attempt to make employees utilize all their annual leave days, most Employers have in the past come up with policies and contractual provisions requiring Employees who fail to take all their annual leave days to forfeit the earned but unspent leave days.

The Employment and Labour Relations Court of Kenya has in a number of decisions held that this is a position not supported in the Employment Act, 2007 (the Employment Act) or in any law at all. Section 28 of the Employment Act gives every Employee the right to take annual leave and does not sanction the practice of forfeiture of unutilized leave days.

While the requirement for forfeiture may be provided for in the Employer’s employment policy or the Employee’s contract of employment, it is important to note that no employment policy or contractual provision can supersede the provisions of the law. The Employment Act provides that every employee is entitled to a minimum of twenty-one (21) days of fully paid annual leave after twelve (12) consecutive months of service with the Employer.

It is therefore important that the Employer devices other ways of ensuring every Employee takes their annual leave days. It is the responsibility of the Employer to ensure that every Employee has taken leave when due or to make payment in lieu thereof.