Division 2 of Part VI of the Employment Act (Chapter 373) sets three layers of protection: a minimum age, a ban on injurious work, and limits on hours.
Section 103(1) and (2) — the minimum age and the exception
Subject to subsections (2) and (3), a person under 16 years of age shall not be employed.
A person over 11 but under 16 may be employed if the employer first obtains:
(a) at the employer’s own expense, a certificate from a medical practitioner indicating that the person is fit for the type of employment proposed; and
(b) the written consent of his parent or guardian.
Both must be obtained first. The certificate must speak to fitness for the type of employment proposed, not fitness in general. And the cost falls on the employer — it is not a permitted deduction under section 88(1).
Section 103(3) and (4) — school, and what work is open
(c) a person over 11 but under 16 may be employed in an undertaking in which only members of his family are employed; and
(d) a person of 14 or 15 may be employed in any industry other than an industrial undertaking or the fishing industry.
| Age | May be employed | Conditions |
|---|---|---|
| Under 11 | Not at all | — |
| Over 11, under 14 | Only in a family undertaking | Medical certificate; written parental consent; not prejudicial to school; outside school hours |
| 14 or 15 | A family undertaking, or any industry other than an industrial undertaking or the fishing industry | As above |
| 16 or 17 | Generally — and may enter a written contract (s 18) | No work 6 p.m. to 6 a.m. except in a family undertaking |
Section 103(4) makes one qualification: a person of 14 or 15 may be employed during school hours where the employer is satisfied that the person no longer attends school. The employer must actually form that view, and should record the basis for it.
Section 104 — injurious conditions
A person under 16 shall not be employed in any employment, or in any place, or under working conditions, that are injurious or likely to be injurious to the health of the person.
This is absolute — it is not softened by parental consent or a medical certificate for the job. And section 104(2) supplies the proof: the certificate of a medical practitioner shall be conclusive evidence as to whether the employment, place or conditions are, or are likely to be, injurious.
An employer who employs a person under 16 in employment:
(a) that is injurious to health, dangerous or unsuitable; or
(b) concerning which he has been notified by the Secretary that it is injurious to health, dangerous or unsuitable,
is guilty of an offence. Penalty: a fine not exceeding K500.00 — the highest in the Act.
Where the employment of a person under 16 is discontinued under section 104(3), he retains his right under the terms of his contract of service to be paid all wages due to him up to and including the date of discontinuance.
Unlawful employment does not become unpaid employment. The young worker keeps the wages earned.
Section 105 — hours of employment of young persons
(1) A person under 16 shall not be employed between 6 p.m. and 6 a.m. — no exception.
(2) A person 16 or 17 shall not be employed between 6 p.m. and 6 a.m., except in an undertaking in which only members of his family are employed.
So the night-work prohibition runs to 18, with a narrow family exception for 16 and 17 year olds. It sits alongside the general limits in section 49 — the 12-hour maximum, the meal and rest periods, and the weekly 24-hour rest — all of which apply to young workers too.
Contracts, and the rest of the Act
- Section 18 — notwithstanding any other law, a person 16 or over may enter a written contract of service. Below 16, the written-contract route is not available.
- Section 131(1)(c) — before attesting a contract, a medical officer must certify that the employee is of employable age. See medical examinations.
- Section 131(4)(c) — where the employee is found to be under the minimum employable age, the employer must comply with directions as to variation or termination of the contract.
- Section 12 — a contract of service is not binding on members of the employee’s family (subject to section 30 on piece-rate groups). A parent cannot bind a child to work by their own contract.
- Section 3(2) — the engagement of a school pupil in part-time work necessary for or incidental to cleaning the school or its grounds — or, for a boarder, growing food for teachers and pupils — is deemed not to be employment for the Act’s purposes.
Checklist for an employer
- Verify the age before engagement, and record how it was verified.
- Under 11 — do not employ.
- 11 to 15 — obtain first: a medical practitioner’s certificate of fitness for the type of work, at your expense, and the written consent of a parent or guardian.
- Check the work is open to that age — family undertaking only under 14; for 14 and 15 year olds, not an industrial undertaking and not the fishing industry.
- Check school — not prejudicial to attendance, and outside school hours, unless satisfied the person no longer attends.
- Assess the conditions — nothing injurious or likely to be injurious for anyone under 16; a practitioner’s certificate is conclusive.
- No night work — under 16 at all; 16 and 17 except in a family undertaking.
- Apply the ordinary standards — hours, breaks, rest, wages, records and welfare all apply as for any employee.
Employment obtained by deception or coercion engages section 133 (fraud, intimidation, coercion or undue influence for employment purposes) and, in serious cases, the Criminal Code Act (Chapter 262). Concerns about a child in work should also be raised with child protection authorities under the Lukautim Pikinini Act 2015.
Sources
- Employment Act (Chapter 373) — ss 3, 12, 18, 30, 49, 88, 103–105, 131, 133; Part VI Division 2
- Criminal Code Act (Chapter 262)
- Lukautim Pikinini Act 2015
- Constitution — Preamble (National Goals)
Before relying on anything here, read the current text of the Employment Act (Chapter 373) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.