12Oct

Yesterday (October 10th) was World Mental Health Day. The objective is to organize support for mental health and increase awareness of mental health problems throughout the world. This year’s theme is to make Mental Health and well-being for all a global priority.

Mental health and wellness revolves around our emotional, psychological and social welfare. It affects how we think, feel and behave. Positive mental health is not simply the absence of mental health issues, such as depression or anxiety but predominantly about the presence of positive characteristics such as a feeling of purpose, contentment, maintaining fulfilling relationships and participating in life to the fullest. In the workplace setting, it determines how employees cope with everyday stressors and work productively to realize goals.

It is increasingly being recognized that the mental well-being of workers is a crucial determinant in their overall well-being and that poor mental wellness at the workplace can be a contributory factor to a range of physical illnesses like hypertension, diabetes and cardiovascular conditions, amongst others. In addition, poor mental health can also lead to burn-out amongst employees, affects their morale adversely and seriously affects their ability to contribute meaningfully in both their personal and professional lives.

Mental health problems have an impact on employers directly through increased absenteeism, negative impact on productivity and profits, high turnover rates, as well as an increase in company costs in efforts to deal with the issue.

Work related risk factors for mental wellbeing

Most risks relate to interactions between type of work, the organizational and managerial environment, the skills and competencies of employees, and the support available for employees to carry out their work.

Risks to mental health include:

  • Inadequate health and safety policies
  • Poor communication and management practices
  • Limited participation in decision-making or low control over one’s area of work
  • Low levels of support for employees
  • Inflexible working hours
  • Unclear tasks or organizational objectives
  • Job insecurity

Risks may also be related to job content, such as mismatch of tasks to employee’s competencies or a high and unrelenting workload. Risk may be increased in situations where there is a lack of team cohesion or social support.

Bullying and psychological harassment (also known as “mobbing”) is commonly reported as a cause of work-related stress by workers and present risks to the health of workers.

Strategies to promote mental wellness at the work place

Employer Employee
·        Provide relaxation spaces to unwind during breaks ·        Take part in employer-sponsored programs and activities
·        Dispense self-assessment tools such as work – life balance questionnaires ·        Nurture social connections at work to prevent social isolation and loneliness
·        Include mental health coverage as part of workforce health care plan ·        Look after their physical health
·        Managers should aim to create a healthier company culture ·        Practice self-care during breaks – for example, meditation and listening to inspirational podcasts
·        Ensure a proper health and safety policy is in place ·        Exercise coping skills during the work day – for example prioritization to avoid being overwhelmed

 Positive mental health allows employees to;

  • Recognize, express and regulate emotions
  • Empathize with others
  • Reach their highest potential
  • Flourish in their roles
  • Cope with changing roles, responsibilities and challenges

Negative effects of poor mental fitness in the workplace

  • Lack of engagement with one’s work
  • Low productivity
  • Reduced physical capability
  • Misaligned communication
  • Poor decision making

Conclusion

Human performance and mental well-being go hand in hand, therefore workplace wellness must be among a company’s top priority. Mental wellness is an initiative that should be a commitment of both the employer and employee in order to create a conducive work environment. A mentally stable workforce equals high productivity and longevity of an organization.

05Oct

GARDEN LEAVE CLAUSES IN EMPLOYMENT CONTRACTS

Garden leave is a term used to reference the practice of having an employee work away from the office with limited access to the employer’s resources following a notice of termination or resignation.

Garden leave provisions may be included in employment contracts, separation contracts, or even full on non-compete and confidentiality agreements, depending on the goal that the parties want to achieve. These include:

  1. Protecting the Employer’s Legitimate Interest

Garden leave provisions to include terms that restrict the employee from engaging in competing business or practice with those of the employer during the pendency of the garden leave period. Non-solicitation clauses may also be included to limit the employee from contacting clients of the employer or from poaching other employees. Employers may elect to provide for a garden leave period long enough to thwart any of these threats from affecting their business, should they materialize.

  1. Safeguard against possible detrimental behavior of the employee

For employment contracts, the garden leave provision may be important to employers who need to immediately terminate an employee from employment but may be restricted by employment laws that require due process to be followed before termination of employment. For instance, in cases where an employee’s improper conduct is the reason for termination of employment and where the employer is of the opinion that the conduct may continue, the employer may deny the employee access to the office and to certain resources to safeguard against the bad conduct.

Rights and Obligations Provided by Garden Leave

  • A person on garden leave is still considered an employee of their employer and therefore continues to enjoy the benefits of the employment contract, such as the basic salary, fringe benefits, and in some cases bonuses.
  • Equally, the person is bound by a corresponding obligation to continue with his contractual duties as per his contract, but in some pro-employer contracts, the employer may reserve the right to assign those duties to the employee within the garden leave period.

Garden Leave as an Alternative to Non-Compete Provisions

Garden leave also sometimes includes restrictive trade provisions that limit the employee from engaging in competing business with the employer or from, soliciting employees and clients away from the employer. However, the Kenyan courts’ attitude on non-compete and restrictive clauses is quite clear

Garden leave provisions offer a good alternative to non-compete and restrictive trade clauses often so when the employer is seeking to protect legitimate business interests. The courts might be more tolerant of garden leave provisions as opposed to restrictive trade provisions because garden leave periods are usually shorter (1-3 months) than the typical non-compete 6months-12 months’ period.

Also, it may be easier for an employer to enforce garden clauses as opposed to restrictive trade provisions because of the continuing obligation of the employee towards his/her employer contrasted to the non-existent relation where non-compete clauses are used in separation agreements.

The Advantages of Garden Leave Provisions

  • Might be comparatively easier to enforce than non-compete clauses.
  • Offers a more orderly transition following the termination of employment contract contrasted with transition offered by the shorter 1-month notice period that is common to most employment agreements or separation agreements.
  • It is less likely to be overused by employers to stifle competition, compared to non-compete provisions, because of the cost implication.
  • Offers added protection to employers who have the ability to include restrictive clauses within the period of garden leave to prevent the employee from revealing critical information, soliciting clients, poaching employees, and working for a competitor against the employer’s best interest

Limitations of Garden Leave Provisions

  • Are expensive for an employer as they require them to continue to remunerate an employee who does not perform any work.
  • the protection period offered by garden leave provisions to safeguard against completion is shorter than that provided by non-compete period, which normally excludes an employer from competing with his employer for up to 6 months at least.
  • Case law on garden leave provisions is not sufficiently established neither does the Employment Act specifically provide for it, creating an un-certainty in the enforcement of garden leave provisions
  • The fact that an employee is still bound by his employment contract during garden leave may raise interesting questions about their constitutional right to freedom from servitude, especially when the employee does not want to continue to be bound.

Conclusion

The Employment Act (2007) does not make a provision for Garden Leave, however, the law of contract allows for its use where both parties are accepting of the provisions and agree to be bound.

Garden leaves presents a good common ground for both the employer and employees especially in negotiating post-termination terms. It will be quite interesting to see how the Kenyan courts develop jurisprudence surrounding garden leave as their use becomes more common in employment practice.

10Jun

There are full service engage company is to provide solution for employees needs training manage the entire HR department for companies. We offer comprehensive employment services such as assistance

15Jan

There are full service engage company is to provide solution for employees needs training manage the entire HR department for companies. We offer comprehensive employment services such as assistance