The rise of the global gig economy where more people are working as freelancers and side-jobs, fuelled by increased access to smartphones and internet connectivity, has transformed Kenya's employment landscape. This has ushered 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, this shift has blurred the lines between traditional employment and independent contracting. This underscores the need for regulatory reforms to ensure fair treatment, job security, and social protections for gig workers, who often lack the collective bargaining rights typically granted to employees under domestic labour laws.

Unlike traditional roles that offer fixed hours and benefits such as healthcare and paid leave, gig work is characterized by its temporary, task-based nature. Gig workers frequently juggle multiple clients, using their own tools like laptops for Upwork freelancers or personal 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 arisng include whether gig workers should be entitled to the same rights and protections as employees under Kenyan labour laws or if they should remain classified as independent contractors with limited rights. Classifying them as employees could compromise their autonomy, yet classifying them as independent contractors remains problematic due to the significant control and integration exerted by platforms that is not typical for contractors.

While Kenyan courts have yet to make a definitive ruling on the legal status of gig workers, the Employment court recently addressed a related issue in Meta Platforms, Inc v Motaung & Others (2024). Content moderators filed a petition against Meta and Sama, alleging unfair labour practices. In an interlocutory ruling, the Employment Court ruled that the petitioners were Meta employees, with Sama acting as Meta’s agent but the Court of Appeal reversed this decision stating that the Employment Court had ruled prematurely on contested issues. The final decision on this matter will be pivotal in shaping Kenya's legal framework for digital and gig work.

In other jurisdictions, the legal place of digital and gig workers has also come up for determination. The UK Supreme Court in Uber BV v Aslam [2021] classified Uber drivers as "workers" rather than independent contractors, considering Uber's control over drivers’ pay, fares, vehicle standards, acceptance rates and service delivery. This decision gave drivers certain labour protections under UK law, distinguishing them from fulltime employees. Since the UK Supreme Court's decision essentially hinged on Uber’s level of control over its drivers, the ruling could significantly influence Kenyan courts should a similar case arise concerning the classification of gig workers.

The UK labour law framework differentiates between employees, workers, and independent contractors; a distinction lacking in Kenyan law. In Kenya, determining employment status hinges on assessing the level of control an employer exercises over gig workers. Where online platforms exert significant control, courts may infer an employment relationship. Key tests used in this assessment include the integration test, which evaluates if the worker is embedded in the employer's business, and the economic reality test, which examines whether the worker functions as an independent entrepreneur or is reliant on the employer. Additionally, the mutuality of obligation concept considers both parties' commitments to maintain the employment relationship over time.

To address the legal challenges of the gig economy, there are increasing calls for legislative reforms in Kenya that reflect the changing nature of work due to technological advancements. The Employment Court (Justice Byram Ongaya) emphasized this need in the Meta Platforms case, directing stakeholders to review existing laws on occupational health and safety for digital workers to ensure adequate protections. The recent strike by ride-hailing drivers further highlights the urgency for reforms that balance gig workers' rights with employers' interests. The aim is to support the growth of Kenya's digital economy without imposing overly rigid regulations. One proposed solution is to amend the Employment Act to create a new classification for gig workers, like the UK's "worker" status, granting them access to certain protections like minimum wage and social security while maintaining flexibility. Alternatively, classifying them as employees could offer broader protections but risk compromising their autonomy. Ultimately, any reforms should respect workers' rights and foster the digital economy, possibly through sector-specific regulations that clarify relationships between online platforms and gig workers, ensuring transparent payment systems and grievance procedures.

As Kenya's digital economy expands, initiating a national conversation on the legal definition of gig work is essential. Such dialogue would ensure businesses remain compliant while maintaining the flexibility that makes gig work attractive. A robust legislative framework would allow companies to operate more efficiently and reduce the risk of costly litigation and substantial damages from court disputes.

The article was featured in the Business Daily on 4 November 2024 and can be accessed here.