Desperate times call for desperate measures, right? As you take action in a bid to contain the challenges facing your business or organization at this time, here are 9 things to avoid doing:-

  1. Declare an employee on maternity leave redundant – there are a number of decisions of the Employment & Labour Relations Court where it has been held that an employee who is on maternity leave should not lose their employment. These decisions are based on Section 29(2) of the Employment Act, 2007 which provides that the employee is entitled to return to work on completion of the maternity leave.
  2. Issue a general redundancy notice to “ALL” – individual notices should be served on each and every employee in an affected job category.
  3. Fail to notify the labour officers who are located in all the locations where you have staff working – according to Section 40(1) of the Employment Act, the employer should notify the labour officer in charge of the area where the employee is employed. Meaning, if you have employees working in multiple locations, you should notify the labour officers in those different locations (applies to redundancies).
  4. Fail to consult the trade union during a proposed redundancy – this obligation does not go away because of the pandemic. Where an employer proposes to terminate union members on account of redundancy, there is an obligation to consult the trade union on the proposed redundancy. Failure to do this leads to a flawed redundancy process.
  5. Fail to provide a grievance mechanism for measures taken such as unpaid leave, salary reductions and redundancy – employees should be notified of the mechanism which they may use to raise any grievances which they may have.
  6. Don’t forget to:-
    1. Notify the National Employment AuthoritySection 78 of the Employment Act places an obligation on an employer to issue a notice of the termination of every employment and of each layoff within two weeks of the termination or lay-off.
    2. Confirm with your insurer on the existence of insurance cover while staff work from home and for COVID-19 related claims;
    3. Keep track of probation periods and expiry of fixed-term contracts – if no communication is issued before the lapse of a probation period, the staff is deemed confirmed into employment. If no communication is received prior to the expiry of a fixed-term contract, the contract is deemed to have been renewed on similar terms as the previous one;
    4. Draft addendums to employment contracts containing a work from home policy and policies relevant to COVID-19 (citing the measures taken by the employer, the obligations on the employee and things like confidentiality, non-stigmatization, notifications in the event of illness etc.);
    5. Also, don’t forget that if the reason for the redundancy is challenged, you’ll have to prove the alleged economic crisis which you are facing should that be the reason for carrying out redundancies.
  7. Recruit someone to fill in a position which has been declared redundant.
  8. Promise to refund deducted salaries, or return to full salaries, at once. Unless, of course, you have insight into the future and can say, for sure, that you will be in a position to do so.
  9. Take unilateral decisions on sending staff on annual leave, unpaid leave, salary cuts and adding force majeure clause to employment contracts.

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About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. She has practised employment law for over 12 years and her employment law practice has been recognized by the prestigious Chambers & Partners. Anne cares about employers and their labour issues.


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