Secondment refers to an arrangement in employment law where an employer temporarily transfers an employee to work for another employer, with the understanding that the employee will return to their original employer upon completion of the temporary assignment period. Employers may undertake a secondment arrangement by temporarily transferring employees to another organization to share expertise, enhance skills, or address specific project demands while retaining their original employment. It is a generally accepted practice in Kenya and is recognised and protected by law in Kenya.
Secondment does not result in the termination of an employee’s existing employment relationship, nor does it create a new employment contract. In effect, the contract of employment between the original employer and employee is not terminated because of the temporary assignment of the employee to the new employer. Legally, secondment creates a tripartite relationship involving the original employer, the employee, and the subsequent employer, where the original employer remains the legal employer, while the secondary employer acts as the host or economic employer. Upon lapse of the secondment, the employee resumes his/her services with the original employer.
Position of the Primary Employer
The primary employer:
- continues to be primarily accountable for the employee’s rights, except where explicitly excluded by the secondment agreement.
- remains responsible for any contractual breaches by the host employer against the employee, unless the secondment agreement specifically excludes such liability.
- retains the ultimate disciplinary control over an employee on secondment lies with the primary employer. The host employer lacks this power but can end the secondment arrangement by returning the employee to the primary employer before the secondment period expires. Although the host employer has some influence over whether the employee’s secondment should end early, the decision to terminate the employee’s employment contract for any workplace infractions, including those during the secondment, ultimately rests with the primary employer.
Position of the Host Employer
- Throughout the secondment agreement, the host employer has the authority to assign tasks to the employee and decide the location where these tasks are to be performed.
- the host employer typically handles the direct payment of the employee’s compensation, unless the secondment agreement specifies that such payments are to be managed through the primary employer.
- A secondment employer has no authority in law to terminate the employment of a seconded employee except in cases where the primary employment contract has been expressly terminated.
Secondment Agreement
In Kenya, there are no statutory provisions governing secondment arrangements in the private sector, and such arrangements are regulated by agreements drafted by the parties involved to define the terms and conditions of the secondment. Parties to intended secondment arrangement thus enter into secondment arrangements.
When arranging a secondment, which differs from standard employment, both the primary and host employers must establish a clear, comprehensive agreement that outlines their respective responsibilities regarding the secondee’s rights. This agreement should detail key aspects such as the secondee’s duties, compensation, and termination procedures. It should also address legal considerations, including how to manage potential conflicts of interest, clarify employment status and liability, and define the terms and conditions under which the secondment may be ended. Such clarity helps mitigate risks and ensures a smooth, legally sound arrangement for all parties involved.
Recommendations
- Before secondment, both the primary employer and the intended employee must fully understand their legal rights and obligations under the law concerning the employee to be seconded.
- The secondment should involve a consultative process, as unilateral decisions may breach fair labour practices, particularly when the primary employer’s contract or policies do not explicitly address secondment.
- The parties involved must assign responsibilities, including liabilities, and execute a comprehensive secondment agreement that details critical terms, such as coordination of disciplinary procedures.
At Njaga & Co. Advocates LLP, we possess the expertise to guide organizations and employees through secondment processes, offering advice on arrangements, drafting and reviewing agreements, designing internal policies that align with public and private sector standards, offering strategic advisory and representing primary employers, host employers, or employees involved in secondment arrangements and training HR teams on proper secondment procedures.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified advocate for personalized legal guidance.
