The rise of the global gig economy where more people are working as freelancers and side jobs, fueled by increased access to smartphones and internet connectivity, has transformed Kenya’s employment landscape. This has ushered in a new era of flexibility, autonomy, and remote working.
Platforms like Uber, Bolt, Jumia, and Glovo have empowered Kenyans to engage in freelance and short-term work, significantly contributing to this economic shift.
However, these changes have blurred the line between traditional employment and independent contracting. It underscores the need for regulatory reform to ensure fair treatment, job security, and social protection for gig workers, who often lack the collective bargaining rights normally granted to employees under domestic labor laws.
Unlike traditional roles that offer fixed hours and benefits such as health care and paid leave, gig work is characterized by a temporary, task-based nature.
Gig workers often juggle multiple clients, using their own devices like laptops for Upwork freelancers or private vehicles for Uber drivers. While this model provides income flexibility and the potential for multiple revenue streams, it also raises complex legal questions.
Some of the legal issues that have arisen include whether gig workers should have the same rights and protections as employees under Kenyan labor laws or if they should remain classified as independent contractors with limited rights.
Being classified as an employee can compromise autonomy, but being classified as an independent contractor remains problematic because of the significant control and integration that a platform brings that is not typical for contractors.
While Kenyan courts have yet to make a definitive decision on the legal status of gig workers, the Employment tribunal recently resolved a related issue in Meta Platforms, Inc v Motaung & Others (2024). Content moderators petitioned Meta and Sama, alleging unfair labor practices.
In the interlocutory decision, the Employment Court decided that the petitioners were employees of Meta, with Sama acting as Meta’s agent, but the Court of Appeal reversed this decision stating that the Employment Court had ruled prematurely on the contested issue. The final decision on this matter will be crucial in shaping Kenya’s legal framework for digital works and performances.
In other jurisdictions, the legal place of digital and gig workers has also been determined. The UK High Court in Uber BV v Aslam (2021) classified Uber drivers as “employees” rather than independent contractors, considering Uber’s control over wages, fares, vehicle standards, acceptance rates and service delivery.
This decision gives drivers certain employment protections under English law, distinguishing them from full-time employees. As the UK High Court’s ruling hinges on Uber’s level of control over its drivers, the ruling could affect Kenyan courts if a similar case comes up regarding the classification of gig workers.
The UK employment law framework distinguishes between employees, workers, and independent contractors; less difference in Kenyan law.
In Kenya, determining employment status depends on an assessment of the degree of control that employers exercise over gig workers. If an online platform has significant control, a court can infer an employment relationship.
The key tests used in this assessment include the integration test, which evaluates whether the employee is included in the employer’s business, and the economic reality test, which examines whether the employee is self-employed or dependent on the employer.
In addition, the concept of mutuality of obligation considers the commitment of both parties to maintain a working relationship over time.
To address the legal challenges of the gig economy, there are many calls for legislative reforms in Kenya that reflect the changing nature of work due to technological advances.
The Employment Court (Justice Byram Ongaya) emphasized this need in the case of Meta Platforms, directing stakeholders to review existing laws on occupational health and safety for digital workers to ensure adequate protection.
The recent strike by ride-hailing drivers further highlights the urgency for reforms that balance the rights of gig workers with the interests of employers. The aim is to support the growth of Kenya’s digital economy without imposing rigid regulations.
One proposed solution is to amend the Employment Act to create a new classification for gig workers, similar to the British “employee” status, giving them access to certain protections such as the minimum wage and social security while maintaining flexibility. Alternatively, classifying them as employees may offer more protection but risk compromising their autonomy.
Ultimately, any reform must respect workers’ rights and promote the digital economy, perhaps through sector-specific regulations clarifying the relationship between online platforms and gig workers, ensuring transparent payment systems and complaints procedures.
As Kenya’s digital economy grows, starting a national conversation about the legal definition of gig work is important. That dialogue will ensure the business remains compliant while maintaining the flexibility that makes the gig so appealing.
A strong legislative framework will allow companies to operate more efficiently and reduce the risk of costly litigation and large damages from court disputes.
Martin Munyu (Partner), Tabitha Weru (Senior Associate) and Amos Odhiambo (Associate) all at DLA Piper Africa, Kenya (KM Advocates)
