The recent three years have seen emerging employment trends, prompting companies to reassess both their immediate and long-term strategies. A notable trend is remote working, especially with employees based in different countries. Here are some key considerations for employers considering this practice:

  • Permanent Establishment Risks: Employing someone in a foreign country for extended periods (over six months in Kenya) can lead to the formation of a permanent establishment, implicating the employer in the host country’s tax system. This might include corporate income tax, employee taxes, and other statutory deductions.
  • Immigration Considerations: Employers must ensure that employees have the necessary visas or work permits to legally reside and work in the host country.
  • Employment Contract Terms: Employers must review employment contracts for compliance with local laws, like Kenya’s Employment Act, No. 11 of 2007. This includes ensuring terms are met for employees working abroad, such as work duration, payment currency, additional remuneration, and repatriation terms.
  • Jurisdiction and Governing Law: The employment contract should specify the governing law and jurisdiction. However, local labor laws may override this, affecting aspects like social security and minimum wage. Employers without a Kenyan presence might need a local business registration or alternative arrangements like international secondment agreements.
  • Data Protection Compliance: With remote working, employers using digital monitoring tools must comply with data protection laws both in the home and host countries. This includes adherence to the Data Protection Act in Kenya, applicable to foreign entities processing data of individuals in Kenya.

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W&T Advocates are here to assist

Our team at W&T Advocates LLP takes great pride in possessing a diverse range of resources, expertise, and experience in the field of employment law throughout Kenya and the wider East African Region. WT Advocates offers strategic advice on all types of employment and labour related issues and disputes, across a wide variety of industries in both private and public sectors including NGOs and charities.

Editor’s note: Should you have any questions about this legal alert, please do not hesitate to contact:

Andrew Waithumbi Partner W&T Advocates LLP waithumbi@wtadvocates.com

Timothy Thambu Partner W&T Advocates LLP thambu@wtadvocates.com