Kenya Labour Law :Who is an employee?

The primary aim of the Labour Relations Act is to promote sound relations between employers and employees – workers
falling outside the LRA do not obtain direct protection. The definition of an employee is generally;
 Any person, excluding an independent contractor, who works for another person or for the State
and who receives or is entitled to receive any remuneration
 Any other person who in any manner assists in carrying on or conducting the business of an
employer
The first part of the definition includes domestic and farm workers.
2. Guidelines to distinguish between employees and independent contractors
Three tests;
 Control – control over the type of work the person does, the manner and when it must be done
 Organisation test – is the person part and parcel of the business and not just an accessory
 Dominant impression test – favoured by the courts and considers the employment relationship
as a whole
The LRA provides a rebuttal presumption of an employment relationship between the parties.
The Code also provides a comparison between an employee and independent contractor as follows;
Employee Independent contractor
Object of the contract is to render personal
services
Object of the contract is to produce a specified
result or perform specific work
Employee must perform the services personally Can perform through others
Employer may choose when to use services Must perform work within period fixed by contract
Contract terminates on death of employee Contract need not terminate on death
Contract terminates on expiry of period of service Contract terminates on completion of work or
production of desired result
3. Categories of employees
Most common categories of employees are;
Type of employee Description
Permanent employee Person employed for indefinite period
Temporary / Contract / fixed term Employed for a specified period or contract
Casual  Works for the same employer but not more
than 3 days per week
 Can be either temporary or permanent
Part time  Person works only at certain times
 Works on certain days but limited to three days
per week
 Can be either temporary or permanent
Note the definition of employee does not distinguish between the categories.