July 5, 2019
Employers obligations to file Notifications and Returns with the National Employment Authority – Statement of the Law

On 26th June 2019, The National Employment Authority (“NEA”),  a notice in the local dailies notifying employers in Kenya of their obligations to notify the NEA of any vacancies, any terminated employees, any abolished positions in the employer’s organisations as well as file employers annual returns per the requirements of Section 76 – 81 of the Employment Act, 2007 (“Employment Act”).

Whilst Sections 76 – 81 of the Employment Act place the above obligations on employers, the sections only apply to employers with twenty-five employees and more. Additionally, the Employment Act requires the notifications and employer returns be filed with the Director of Employment, an office established under the National Labour Board by the Labour Institution Act, 2007.

It therefore appears that the NEA has purported to assume the role of the Director of Employment.

The NEA was established by the National Employment Authority Act, 2016 (“NEA ACT”), which sets out the roles and functions of the NEA as well as obligations of employers.

Under the NEA Act, with respect to the Public Sector, whenever a vacancy arises in a public or state office at the national level, the office is required to convey details of vacancies to the NEA. However, in the case of the Private Sector no such obligation is imposed on the employer by the NEA Act. Additionally, the NEA Act does not require the filing of employer annual returns with the NEA nor does it specifically grant the NEA the power to require such filings.

As such, the NEA has assumed the role of the Director of Employment in so far as it requires the filing of employer annual returns and further requires employers in the Private Sector to file notifications of vacancies.

That said, employers are still required by the Employment Act to file notifications of vacancies, abolishment of positions and annual employer returns with the Director of Employment. Presently though, there are no prescribed forms provided for under the Employment Act.

In view of this, it may be prudent for employers with 25 employees or more, to file the Notifications and Returns as directed by NEA (attached are the NEA forms), notwithstanding that NEA lacks the jurisdiction to enforce the aforementioned requirements of the Employment Act.

Please contact Samson Macoduol,  email: Macoduol.S@dalyinamdar.co.ke  for further information.

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