UNRAVELLING THE TRIANGLE: CLARIFYING THE EMPLOYMENT STATUS WITHIN OUTSOURCING TRIANGULAR EMPLOYMENT RELATIONSHIPS IN KENYA

Abstract

Purpose: This paper aimed at unravelling the triangle by assessing the employment status of outsourced workers within outsourcing triangular employment relationships (TERs) in Kenya. 

Methodology: The study adopted desk research in which data was collected from relevant books, journal articles, government reports, legal commentaries, periodicals, relevant statutes, treaties and conventions on the current Kenyan legal framework and its underlying assumptions that pose challenges to outsourced workers. This paper is divided into three main sections. The first discussed the attribution of employment status under Kenya's labour laws. Due regard was given to the statutory definitions and key judicial tests. The second part focused on the employment status of outsourced workers in outsourcing TERs. Though outsourced workers relate with two authority figures, namely the outsourcing company and the client enterprise, the law classifies the outsourcing company as the outsourced workers' employer. The law does not define the relationship between the client enterprise and the outsourced workers which poses unique challenges to the workers. These are compounded when outsourcing TERs arise from the conversion of employees to outsourced workers. The third part identified measures to clarify employment status within outsourcing TERs. The paper underscores the importance of clarifying the employment status within outsourcing TERs.

Findings: It was found that current law on employment status envisages standard employment relationships (SERs) but does not adequately cater for outsourcing TERs. It classifies the outsourcing company as the outsourced workers' employer, and does not factor in that the client enterprise usually exercises day-to-day control over their outsourced workers' activities. It was found that this poses unique challenges when there is transfer of employment from SERs to outsourcing, which may lead to employee misclassification.

Unique Contribution to Theory, Practice and Policy: Adopting joint employee status in Kenya's legal framework would enable placing some employer obligations on the client enterprise, even though it does not formally attach employer status on it. In addition, the express prohibition of sham arrangements and the limitation of outsourcing arrangements to non-core business activities would curb the use of outsourcing TERs to evade employment responsibilities through employee misclassification.