Are unilateral changes to an employment contract legal?
3 years ago
It’s expected that terms and conditions of employment may change from time to time and, therefore, Section 10(5) of the Employment Act, 2007 provides that: –
“Where any matter stipulated in subsection (1) [the employment contract] changes, the employer shall, in consultation with the employee, revise the contract to reflect the change and notify the employee of the change in writing.”
A decision taken ‘in consultation with’ another is one that’s taken after a discussion with the other party about the thing that’s being decided.
If there’s trade union involved, the Recognition Agreement and Collective Bargaining Agreement will no doubt outline the procedure of making changes to the contractual terms.
This is not usually a problem if the proposed change is to the employee’s benefit; the problem arises where the proposed change is to the employee’s detriment; in such a case, the employer should not only consult but should also get the consent of the employee, if this is not done the results could be any of the following: –
A constructive termination arises where the employer, in the absence of any justifiable reasons for dismissal, proceeds to “construct” circumstances that will bring about a dismissal. A unilateral change to a contract may amount to a constructive dismissal. For the Court to hold that a constructive dismissal has occurred, the following must be established by the employee: –
- That the employer made a fundamental change to the contract of employment;
- That such change was unilateral;
- That the situation was so intolerable that the employee was unable to continue working;
- That the employee would have continued working had the employer not created the intolerable work environment; and
- That the employee resigned because he did not believe the employer would abandon the pattern of creating an unacceptable work environment.
- Henry Ochido v NGO Co-ordination Board (Transferring an employee to another town without prior consultation)
- Elizabeth Kwamboka Khaemba v BoG Cardinal Otunga High School Mosocho & 2 others (Altering an employee’s job description without consultation)
- Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
The Court may ignore the change/amendment and uphold the earlier contractual terms. See: –
- Joseph Maina Theuri v Gitonga Kabugi & 3 others where the court declined to uphold disciplinary rules and procedures that were not notified to the employee.
Stay of implementation
The court may stay the implementation of the amendment until consultations are undertaken. See: –
- Kenya Union of Commercial Food and Allied Workers vs Tusker Mattresses Limited; and
- Kenya Local Government Workers Union vs Nyahururu Water & Sanitation Company Ltd
Other cases you may want to read through on the issue of changes to the contract: –
- Kenya County Government Workers Union v Kisumu County Government & 95 others; and
- Kepha Thuo Magua v Board of Governors Satima Secondary School
All cases can be accessed at http://kenyalaw.org/caselaw/
Mode of notification
The notification of the change may be done through a simple letter to the employee outlining the change or through an addendum to the contract. In either case, the employee should sign and retain a copy of the amendment and the signed acknowledgment should be kept in the employer’s records.
- An employer should consult an employee prior to effecting changes to agreed terms and conditions of employment;
- Consultation is mandatory, consent is not;
- A change that is of a fundamental nature, if not consented to, may lead to a finding that an employee who resigns as a result of the change, has been constructively dismissed.
Follow us on Twitter for a daily dose of the Employment Laws.
The information on this website is for general guidance on your rights and responsibilities and is not legal advice. If you need more details on your rights or legal advice about what action to take, please contact a lawyer.
We try to ensure that the information on this website is accurate. However, we will not accept liability for any loss, damage or inconvenience arising as a consequence of any use of or the inability to use any information on this website.
We assume no responsibility for the contents of linked websites. The inclusion of any link should not be taken as an endorsement of any kind by us of the linked website or any association with its operators. Further, we have no control over the availability of the linked pages.