An Analysis of the Legal Regulation of Outsourcing Triangular Employment Relationships in Kenya
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Date
2023Author
Muindi, Melissa W.
Type
ThesisLanguage
enMetadata
Show full item recordAbstract
In Kenya, the current legislative framework on employment focuses on the SER and does
not adequately cater for NSWs; it is unable to deal with many of the challenges faced by outsourced
workers. Employment laws are framed with the SER in mind and envisage direct employment
relationships with a single employer. They are difficult to apply to outsourcing TERs. The splitting
and sharing of employment functions between the outsourcing company and the client enterprise
often affect the enforcement of outsourced workers’ rights and their job security. Further, even
though outsourced workers may perform duties similar to directly employed workers of the client
enterprise, they may experience differential treatment at the workplace.
The overall objective of this study was to analyze the legal regulation of outsourcing
triangular employment relationships in Kenya to find out whether it is sufficient to protect the
rights of outsourced workers in order to identify possible interventions that can enhance the
protection of outsourced workers. To achieve the general objective, this study specifically
investigated the nature of outsourcing triangular employment relationships based on the
experiences of outsourced workers in Kenya. Second, it assessed the suitability of the current legal
employment framework in protecting outsourced workers, in light of the peculiarities of
outsourcing triangular employment relationships. Third, the study reviewed the International
Labour Organization’s interventions towards the regulation of outsourcing triangular employment
relationships. Finally, it identified the best practices that can be adopted to enhance the regulation
of outsourcing triangular employment relationships in Kenya
This study tested and proved the hypothesis that clarity on the employment status,
employment rights and job security of outsourced workers will enhance the legal regulation of
outsourcing triangular employment relationships in Kenya. It was found that the perceived
advantages and disadvantages of outsourcing arrangements varied depending on whether the
workers were basic-skilled outsourced workers, professionally-skilled outsourced workers or
convenience short-term outsourced workers. Further, outsourced workers felt inadequately
integrated into their workplaces and experienced varying levels of job security because they relate
with two authority figures. It was also found that the law classifies outsourced workers as
employees of the outsourcing company, but it does not provide for the relationship between the
outsourced workers and the client enterprise.
This study makes a valuable contribution to the existing literature by addressing the
precarious nature of outsourcing TERs due to employee misclassification and problems related to
attribution of employer status. It also specifically addresses the employment-related challenges
experienced by outsourced workers in Kenya. The study recommends the adoption of joint and
several liability, as well as measures on equality of treatment through regulation of outsourced
workers’ wages and the full incorporation of worker status in the employment laws. It also
recommends the adoption of comprehensive legislation to protect outsourced workers
Publisher
University of Nairobi
Rights
Attribution-NonCommercial-NoDerivs 3.0 United StatesUsage Rights
http://creativecommons.org/licenses/by-nc-nd/3.0/us/Collections
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