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Redundancies have been quite common in today’s economy. This article looks at a recent case with the view of extracting relevant principles on the subject.

We will study the case of Barclays Bank of Kenya Ltd & Another vs GM & 20 others, Civ App No 296 of 2016. The case was determined by the Court of Appeal on 16th March 2016.

The claimants were former employees of Barclays Bank of Kenya (BBK) who had been seconded to work for Barclays Africa Group Limited (BAGL). BAGL is a South African registered company which holds shares in BBK. They were declared redundant when BAGL ceased operations in the country. The court reiterated the following important points to note regarding redundancies: –

  1. An employer must state the reasons for and the extent of the redundancy in the notices issued to affected staff,  the labour officer and the trade union;
  2. It is for the employer to justify the validity and genuineness of the redundancy;
  3. An employer is required to consult employees prior to a declaration of redundancy, this, according to the judges, resonates with our Constitution and international laws/best practices, specifically Article 41 by which every employee is entitled to fair labour practices and Recommendation No. 166 of the ILO Convention No. 158 which provides for consultation and mitigation of the effects of a redundancy;
  4. The purpose of the consultations is for the parties to discuss and negotiate a way out of the intended redundancy, if it is possible, or the best way of implementing it if it is unavoidable;
  5. The consultations must be real and meaningful and not a charade;
  6. A redundancy notice that is not served on the labour officer is invalid.

You now stand guided!

 

THANK YOU!

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. Advocates. She has practiced employment law for over 10 years. She is a repository junkie and a lover of editing.

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Comments

  1. Otieno Oyuga says:

    Thank you for highlighting that the labour officer must be served and I believe that the same should happen during retrenchment and summary dismissal.What is your take on that counsel?

    1. Anne Babu says:

      A retrenchment and a redundancy are the same and therefore the same rules apply. I confirm that notice to the labour officer is also required in the event of summary dismissal.

  2. Patrick Thuo says:

    My heart bleeds every time I hear of labour injustices. As dumb as firing individuals in the morning without notice or pay in lieu. Or the denial of leave. All because the employees do not know what they are entitled to. Your writing sheds light on these. Sharing is my pleasure.

    Congrats on that nomination. My vote is in the basket.

    1. Anne Babu says:

      Thank you very much.

  3. Mary says:

    Thank you Ann for the info.
    Your interview yesterday on Ebru TV Kenya was amazing. I learnt alot

    All the best in your coming plans……

    1. Anne Babu says:

      You are most welcome.

  4. I have voted for your blog Ann babu

    1. Anne Babu says:

      Thank you very much

  5. Ken says:

    Thanks for this and other informative articles. I have cast my vote.

    1. Anne Babu says:

      Thank you very much.

  6. Ciiru says:

    Redundancy – does the employee accrue leave during the notice period? And how should be the rate of annual leave be calculated in the case of working a 36 hour week? It was full days during the week and not weekend. I ask as it was calculated based on a 30 working month.

    1. Anne Babu says:

      Leave is accrued during the notice period. Your second question is not clear.

  7. Danstun says:

    Hi Anne,
    Thanks for good work you are doing.
    Please advise retrenchment procedure in accordance with labor laws and kindly base on incase:-

    *Employer does not clearly state the nature and reason for Retrenchment.

    *Employer refuses to pay gratitude.Thanks in advance.

    Best regards,
    Danstun

    1. Anne Babu says:

      Retrenchment and redundancy are one and the same thing and therefore the same procedure applies. The reasons for the redundancy should be stated and justifiable. Payment of gratuity is not mandatory. The employer is only obliged to pay severance which should not be less than 15 days pay for every year worked.

  8. Danstun says:

    Hi Anne,

    Receive my vote with verification Code 610046.All the best.

    1. Anne Babu says:

      Thank you.

  9. GRACE GICHOVI says:

    Much appreciation Ann for your tremendous enlightening.

    Count my vote in, you deserve.

    1. Anne Babu says:

      Thank you so much.

  10. Dophel says:

    I have voted Anne. Thumbs up and all the best dear.

    1. Anne Babu says:

      Asante sana.

  11. Peter Kamunya says:

    Hi Anne Babu.

    I like your blog. Very nice. I have voted for you.
    Consider writing about VERs.

    Regards
    Kamunya

    1. Anne Babu says:

      Thank you. I will be doing a post on VERs very soon.

  12. somoe keiywo says:

    Very enlightening thank you so much. Keep up the spirit

  13. Mary says:

    Hi Ann,
    This is very informative.
    I do however have a question.
    What is the correct process on a partial redundancy? By that I mean that an individual has two roles and one role is being made redundant. The management has only verbally notified the employee and advised that redundancy of the role should be effective over the next 8-12 months and not immediately.
    In the meantime the individual has been assigned another role and told to stop all tasks of the “redundant role”
    What should the individual do and is this the correct HR /legal process?

    1. Anne Babu says:

      The job description provides for 2 roles and one has been scrapped?

  14. Mary says:

    It was an additional role. So as an example the person was handling Customer Service as a core role and then later an additional role (which used to be handled as a managerial role) was added such as Business analyst.
    So in effect the roles are two. Customer service and business analyst manager.
    So the management combined the roles to be done by one person.

    1. Anne Babu says:

      The current role should be declared redundant and her redundancy dues paid, leaving her with the option to apply for the new role that does not have the redundant roles.

  15. Emmie says:

    Thanks Anne, this is very enlightening. Please advice, what would be the procedure for fixed term contacts common with NGOs. Is it in order to issue end of contract notice and terminate contracts without consideration for the redunduncy pay

    1. Anne Babu says:

      A fixed term contract ends at the end of the term. There is no redundancy and therefore no severance is paid. A notice of non-renewal may be issued prior to the end date but it is not mandatory.

  16. Dianah says:

    Hi Ann, Please enlighten me on how leave pay should be calculated and on a law that points out regarding leave pay calculation. Taking into consideration of 24 leave days in a year-employee earns 2days each month. working days monday to friday 8-5 and Saturday 8-12. in he private sector – wireless telecommunications private company

    1. Anne Babu says:

      Hi Dianah, there is no law that gives a formula for computing leave pay. You are supposed to compute the daily rate then multiply by the number of days.

  17. Paul Mburu says:

    1. Can a company recruit for positions that were declared redundant within the same year? what is the cooling off period before the company re-hires?
    2. What are the provisions of the employment act with regards to leave days? can the company force the employee to forfeit leave days if not taken during the period that they are earned especially when determining redundancy pay?

    1. Anne Babu says:

      There is no specified period but the burden lies on the company to explain why they are doing a fresh recruitment so soon after the redundancy.
      Section 28 of the Employment Act deals with leave days. Ideally, leave days should be paid off on termination and should only be used during the notice period with the employee’s consent.

  18. Ken says:

    A group of employees are within the redundancy criteria, although employer unwilling to release and pay them due to the fact they are 2years to retirement, whilst they are willing to be rendered redundant.

    1. Anne Babu says:

      The employees cannot compel the employer to declare them redundant.

  19. mohamed noor says:

    Go there.. very informative topic..thanks and God bless you and rewatd youfor this…

    I was given a letter stating my job is now redundant with one month notice ..letter stated they would pay my dues …description for reduncy was for a job area I never held..was told to hand over all files and computer files were cooid by tge it deot immeduately from my laptop immediately and could leave and would be called if necessary within the one month notice ..no dialoge or indication given earlier of this impending termination . .just suddenly called in. Hairmans office and was told my duties were relieved and given letter and it dept supervisor and another staff called in to take over my duties… dont think the labour office was notified. I believe they wanted to get rid of me under the pretext of redundancy.. I am over 60 years old with 10 years service in a key financial position .. i think it was like withhunting for sometime to get me out …..i have never been told my jod is at stake..with no cause or letter on poor performance or any warning letters in any areas of my work in the 10 years ..I believe to be a case of unfair dismissal and termination without due cause and without taking into account of seniority ..my work was distributed to other staff so I believe the question of position becoming superflous does not arise as the job responsibilities are also currently still in place being handled by other staff. i have gardly fallen sick or been on extended medical leave during my tenure.Please advise if they can make me redundant without due cause and diligence. and if i can claim compensation for unfair unprocedueal and unlawful termination yndet the pretext of so called redundant position. By the way..so uou have representative office in Mombasa Regards

    1. Anne Babu says:

      If your position no longer exists then that is a redundancy – even if your duties have been distributed to others. The question is are you the only one in the job category? If not, why were you selected over the rest? You may need to speak with a labour officer or lawyer to determine if the selection process was unfair.

  20. Ken says:

    A current job’s role is expanded and merged with another, during a redundancy notice period, then its advertised. What is the fate of the incumbent if they do not apply since they feel the new JD is huge for them?

    1. Anne Babu says:

      They will be declared redundant.

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