Health and Safety Claims: Correct Approach

Kenya has the Work Injury Benefit Act 2007 and the Occupational Safety and Health Act 2007 which address compensation to any who sustain injury or contract diseases from the work environment.?

Undoubtedly, it is the expectation that employers shall ensure the safety, health and welfare of the employees in the workplace and therefore, where an incident arises that result in injury or disease the employer is liable for the compensation.

Kenyan courts have determined that employers are expected to warn the employees of likely injury and disease but also make the workplace as safe as possible using reasonable skill and care, with consideration of the circumstances.

An employee is not permitted, under Kenya law, to assign or relinquish the right to compensation. It is expected that any employer whose employee has sustained injury or disease will present these claims to the Director of Occupational Safety and Health Services (DOSH), within 7 days of occurrence of the incident, and reports of death must be made within 24 hours.

If the employer does not report the incident, the employee can do so. That said, employees need to know that these claims will not be determined by the Employment and Labor Relations Court unless the claim is presented after consideration by DOSH. The timeline for presentation for claims for compensation is 12 months from the date of the incident.

DOSH will carry out an inquiry into the circumstances of the incident and decide upon any claim or liability. DOSH is nonpartisan and refers to a scale for the computation of sums to be remitted to an employee once it has received medical reports (usually from a government doctor, designated within the jurisdiction of the specific DOSH office), police reports (if relevant) and any other documents it may call for.

This process is expected to allow the employee to receive compensation quicker than if litigation were to be initiated. The expectation is that the employer will have insurance in place which will settle the claim as assessed by DOSH with the entire process taking no more than 120 days (this timeline is not usually met).

If any employer dishonors payments computed by DOSH, the Employment and Labor Relations Court will facilitate enforcement and hear any appeals that may arise out of the computation. That Court can also administer any agreement arrived at arising out of DOSH assessment. ?

The law on occupational health and safety provides a simple mechanism for redress for work-related injuries and diseases contracted at the workplace. The courts assist in enforcing awards by DOSH.

Should you need to know more on this, please reach Nelson Otiende on [email protected] or [email protected].