An Analysis of the Legal Regulation of Outsourcing Triangular Employment Relationships in Kenya

Abstract

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