Workplace Policies Guide for Kenyan SMEs

Why are workplace policies important for my business?

Workplace policies are essential tools that help Kenyan businesses comply with the Constitution and labour statutes, reduce legal risk, and create predictable, fair and safe working environments for both employers and employees. Well-designed policies are especially important for SMEs, which often lack full HR departments but still face the same compliance obligations and potential disputes as larger organizations.

Workplace policies are not optional; they are legal, operational, and risk-management essentials. In Kenya, policies help employers:

1. Comply with statutory obligations (Employment Act, OSHA, Constitution, etc.)
2. Provide clarity on rights, duties, and expectations.
3. Prevent litigation by demonstrating fairness, due process, and consistency.
4. Promote productivity through structured workflows and predictable procedures.
5. Protect the employer from claims of discrimination, unfair labour practices, harassment, and unsafe workplaces.
6. Support corporate governance and HR compliance, which is increasingly demanded by investors, regulators, and international partners.

Courts in Kenya consistently expect employers to have clear policies and rely on them when assessing procedural fairness, substantive justification, and reasonableness of employment decisions.

Which constitutional rights influence employee policies?

The Constitution of Kenya 2010 demands that workplaces respect and uphold:

• Article 27 – Equality and freedom from discrimination
• Article 28 – Human dignity
• Article 30 – Freedom from slavery, servitude, forced labour
• Article 41 – Labour rights (fair remuneration, reasonable working conditions, union rights)
• Article 43 – Right to the highest attainable standard of health
•  Article 48 – Access to justice
• Article 50 – Fair administrative action and fair hearing
• Article 232 – Values and principles of public service (also used to guide private employers: accountability, transparency, efficiency, integrity)

A compliant workplace policy framework ensures that the employer upholds these constitutional rights in day-to-day management.

What policies are required by law?

Several Kenyan statutes and regulations expressly require employers to have written policies, while others strongly imply the need for them to comply. For example, the Employment Act and its General Rules require employers to display workplace policies and, where there are 20 or more employees, to issue a sexual harassment policy; OSHA requires a written safety and health policy for workplaces; and HIV and disability laws require non-discrimination and confidentiality measures, which are best implemented through written policies.

Key policy types and legal anchors

What is an employment and HR policy manual, and why should SMEs have one?

An HR policy manual is a consolidated set of written rules that govern recruitment, probation, confirmation, working hours, leave, performance management, discipline, termination, and related HR issues. For SMEs, it ensures that day-to-day decisions align with the Employment Act’s minimum standards and constitutional principles, reducing ad hoc decisions that often lead to unfair termination claims or labour complaints.

Do I really need a policy on Sexual Harassment?

Yes. It is mandatory for many and critical for all. Under Section 6 of the Employment Act 2007 and the Sexual Offences Act, every employer with 20 or more employees must have a written policy statement on sexual harassment. However, even for smaller SMEs, having this policy is essential because you are liable for harassment that occurs in your workplace unless you can prove you took steps to prevent it.

This policy must define sexual harassment, explain how to report incidents, outline investigation steps, and set out disciplinary consequences, thereby demonstrating that the employer has taken reasonable steps to prevent and address harassment.

Why is an occupational safety and health policy mandatory?

Occupational Safety and Health Act (OSHA) 2007 places a general duty on every occupier (employer) to ensure the safety, health, and welfare of workers and requires a written safety and health policy statement, except in limited prescribed cases. A proper OSH policy helps identify workplace hazards, assign responsibilities, create safety committees, and set emergency procedures, which is crucial when inspectors audit the workplace or when accidents occur.

Do employers need a specific HIV & AIDS workplace policy?

While the HIV and AIDS Prevention and Control Act focus on rights such as non-discrimination, confidentiality, and voluntary testing, it also mandates HIV education in workplaces. It supports workplace policies to implement these rights. A written HIV & AIDS policy promotes non-discrimination, protects the privacy of test results, and clarifies that HIV status is not a valid ground for dismissal or disciplinary action, thereby reducing stigma and legal exposure.

How should SMEs deal with disability inclusion in their policies?

The Constitution and disability legislation require equal treatment, reasonable accommodation, and, for larger employers, minimum quotas for persons with disabilities in employment. SMEs should adopt a disability inclusion policy that addresses non-discrimination in recruitment, workplace adjustments, accessible facilities, and grievance channels, aligning internal practice with both constitutional standards and evolving statutory obligations.

What is the Disciplinary and Grievance Policy, and why is it vital?

This is arguably your most used legal shield. The Employment Act sets a very high bar for “procedural fairness” before termination.

• The Risk: Most SMEs lose unfair termination cases not because they lacked a valid reason to fire someone, but because they didn’t follow the correct procedure.
• The Policy: It outlines the steps for disciplinary action (warnings, hearings, show-cause letters) and provides a channel for employees to air grievances formally. This ensures you comply with the statutory right to a fair hearing.

An ironclad disciplinary and grievance policy should outline categories of misconduct, warning procedures, investigation processes, hearing formats, and appeal mechanisms, as well as grievance channels that allow employees to raise concerns internally before disputes escalate externally.

Data Protection & Confidentiality Policy

With the enforcement of the Data Protection Act 2019, handling employee data (IDs, KRA PINs, medical records, banking details) without a policy is a liability.

A Data Protection/Privacy Policy explains to employees what data you collect, why you collect it (lawful basis), and how you keep it safe. It is also advisable to have a clause on “Acceptable Use of ICT” to govern how employees use company computers and the internet.

What is the Leave & Working Hours Policy?

 Sections 27–33 of the Employment Act provide for reasonable working hours, at least one rest day per week, paid annual leave, public holidays, maternity/paternity leave, and other leave entitlements. Leave and Working Hours policies should clearly set out daily and weekly hours, overtime conditions, approval procedures, leave application processes and records, ensuring that both management and staff understand and respect statutory limits.

Do SMEs need ethics-related workplace policies?

Absolutely. Under the Leadership and Integrity Act, Anti-Corruption and Economic Crimes Act, and emerging ESG norms, SMEs need:

• Anti-bribery policy
• Conflict of interest policy
• Whistleblowing policy

These encourage the reporting of unethical practices and protect whistleblowers from retaliation.

Are SMEs required to put policies in writing and display them?

Employment regulations require employers to put in place and display workplace policies, and specific policies, such as sexual harassment policies for employers with twenty or more staff and safety and health policies under OSHA, must be in writing. Displaying and communicating these policies to employees demonstrates transparency and is often checked by labour and safety inspectors as part of compliance audits.

What are the risks of operating without proper workplace policies?

Without clear policies, SMEs face higher risks of unfair termination claims, discrimination complaints, safety violations, wage disputes, and reputational damage. Courts and tribunals may view the absence of policies, or failure to implement them, as evidence of non-compliance or negligence, leading to orders for compensation, reinstatement, penalties, or even criminal liability in safety-related cases.

Other practical considerations for Kenyan SMEs

SMEs should ensure that policies are tailored to their size and sector rather than copied wholesale, while still meeting statutory minimums. It is also vital to train managers and staff on the content of the policies and to review them periodically in light of changing laws, such as recent reforms on disability employment obligations and evolving OSH standards.​

Digital record‑keeping of contracts, policy acknowledgements, and incident reports helps demonstrate compliance if disputes arise. SMEs engaging casual or fixed-term workers should ensure that their policies and contracts properly address the conversion of casual employment and the treatment of fixed-term contracts to avoid unintended permanent obligations.​

How Njaga & Co Advocates Can Help

At Njaga & Co Advocates LLP’s Employment & Labour Law, we specialize in guiding businesses through the complexities of employment and labour law in Kenya. Our services include:

• Drafting and reviewing workplace policies and employees’ handbooks tailored to SMEs.
• Advising on restructuring, disciplinary processes, and workplace investigations.
• Training staff and management on workplace policies, harassment prevention, and safety.
• Providing on-call general counsel support for HR departments.
• Drafting employment contracts, handbooks, and codes of business conduct.
• Ensuring compliance with the Constitution and statutory requirements.
• Should a labour dispute arise, we represent your interests in negotiation, mediation, or the Employment and Labour Relations Court.

Safeguard your business today by partnering with Njaga & Co Advocates LLP. With our expertise, you can focus on growth while we ensure your workplace policies protect your employees and shield your enterprise from legal risks.

Disclaimer: This article provides general information and does not substitute legal advice on specific circumstances of any individual or organization. While the information is accurate as of the date published, we cannot guarantee it remains accurate at the time you read it or that it will stay current. Before acting on any of this information, please seek professional legal advice tailored to your situation.