Trade and Labour Pathways for Decent Work in Kenya's Digital Economy 2025

Kenya’s five core labour laws do not reflect the realities of platform-mediated, gig-based or remote work. Currently, most digital workers are classified as independent contractors and excluded from protections such as minimum wage, sick leave and social security. Kenyan courts have begun to engage with the complexities of employment relationships in the digital economy. Tests such as the “integration test” (which considers whether the worker is part of the core business) and the “economic dependency test” (which examines if the worker relies primarily on one platform for income) are applied in case of disputes, but legislative reforms would provide more certainty for the estimated 1.2 million gig workers in Kenya and the companies and platforms engaging them. The National Institutions Act requires that labour law reform in Kenya be guided by tripartite social dialogue through the National Labour Board (NLB). Efforts to amend the law face two significant challenges: –The complexity of comprehensive reform: While there have been attempts to amend the Employment Act through the NLB to include BPO workers, these efforts were subsumed under a broader reform agenda. Tripartite partners committed to reviewing all five core laws to align them with the 2010 national constitution and to better reflect changes in national, regional and global labour markets. Given the interrelated nature of the legislation – where altering definitions in the Employment Act affects corresponding provisions in the Labour Relations Act, the Occupational Safety and Health Act, the Work Injury Benefits Act and the Labour Institutions Act – piecemeal reform has proven difficult to justify. –Balancing protection with flexibility and growth: If not carefully calibrated, modifying legal definitions of employment could unintentionally undermine the very features that make platform work attractive, such as flexible hours, multiple income streams and remote work. Policy-makers thus face a dual imperative: to safeguard workers from precarity and exclusion while preserving the agility and innovation that digital platforms bring to Kenya’s economy. Although additional, in-depth multistakeholder discussion is required at the domestic level, some options for consideration are given below. –Include digital economy workers in the Employment Act to ensure adequate labour protections. This may involve considering one of the following options and adapting it to the Kenyan context: a. Introducing a third “worker” category (in addition to “employees” and “self- employed”) within the Employment Act: Kenya could introduce a third worker category, covering those who are economically dependent on platforms but do not meet the strict legal test of employment. Workers in this category would be entitled to intermediate protections such as minimum wage guarantees, paid leave, access to social insurance schemes and protections from unfair deactivation.59 For instance, the UK’s non-statutory guidance for employers60 entitles individuals in the third worker category – who are likely to be working in less permanent, full-time employment with a single organization – to a core set of employment protections without revoking their independent status. b. Applying a rebuttable presumption of employee status for certain platform workers: An alternative approach is to presume that platform workers who are under the direction and control of a platform are employees by default, unless the platform can prove otherwise. This reverses the burden of proof and ensures that workers receive full employment protections unless the platform can demonstrate that the individual is genuinely self-employed. This approach has been adopted in the European Union’s Platform Work Directive (2024).61 c. Extending targeted rights to platform workers without changing their legal classification under the Employment Act: This model retains the flexibility of independent contracting while ensuring basic targeted protections for workers in the digital economy such as minimum pay floors, health stipends and so forth. This approach has been implemented in parts of the United States – in California, Proposition 22 (2020)62 classified app-based drivers as independent contractors but mandated that platforms provide a healthcare stipend, occupational accident insurance and a guaranteed minimum earning standard. (Table 1 in the Annex highlights further examples of legislative approaches adopted globally.) –Expand the definition of the “workplace” under the OSHA to include digital and remote environments. This would require platforms – 4.1 Amending labour laws to better include digital economy workers Trade and Labour: Pathways for Decent Work in Kenya’s Digital Economy 19