Legal Position in Kenya on Payment of Overtime

Overtime is the time that an employee works in excess of the ordinary hours of work.

Working hours are regulated by Section 27 of the Employment Act, which provides that an employer shall regulate the working hours of each employee in accordance with the provisions of the Act and any other written law. This includes any applicable wage orders. In addition, an employee is entitled to at least one rest day in every period of seven days.

Generally, an employee must be compensated for any extra hours worked beyond the normal agreed hours. There are exceptions to this general rule such as with respect to employees in management positions or where parties to an employment contract expressly agree that overtime compensation is not payable.

Courts have held that requirement of an employee by an employer to work overtime and without compensation for the extra hours worked is an unfair labour practice and is contrary to Article 41(1) of the Constitution of Kenya, 2010. Article 41 of the Constitution provides that employees have a right to fair labour practices and are entitled to fair remuneration and reasonable working conditions.

Courts have also held that generally, overtime payment must be paid where an employee works on a public holiday.

It is an established practice that employees in management positions are not paid overtime, unless the employment contract provides otherwise. It is understood that their salary includes an element of compensation for working extra hours since the nature of their jobs usually require working overtime. Managers have the bargaining strength to negotiate their terms and conditions of employment with their employers.

Where parties expressly agree under an employment contract that overtime is not payable, an employee cannot claim overtime compensation.

The burden of proving entitlement to overtime payment is on the employee.

Employment contracts and human resource policies should be drafted in a manner that clearly states whether overtime is payable or not to avert employment disputes.

Our employment practice team can help you address any legal risks arising from overtime payment and other employment related issues. 

Please reach out to us should you require any support or guidance in this area.