The law on redundancy has widely been tested in our courts and a strong jurisprudence built over it with regards to the process that precedes a lawful declaration of redundancy.

The requirement of consultation between the employer and employees before termination on account of redundancy has come out as an often disregarded stage in many cases. However, the Courts have moved in to remedy this fatal misstep by finding unfair termination of employment in cases where the employer disregards consultations.

So what's the provision on consultation?

The plain reading of Section 40 of the Employment Act may not directly uncover this important requirement. However, it was the observation of Maraga JA in the Kenya Airways case, that the issuance of the general notice of intention to declare employees redundant gives rise to the requirement of consultations before the second notice on declaration of redundancy is issued. This holding has found recognition in many other employment cases.

Cargill Kenya Limited –vs- Mwaka & 3 others: The court of Appeal in adopting the reasoning of Maraga JA found the termination of employment of the respondents to be unfair for want of consultations. It expressed that consultation is implied under Section 40 of the Employment Act and it is the rationale behind the giving of redundancy notices. It further went ahead to buttress this reasoning by quoting Article 47 of the Constitution and Section 4(3) of the Fair Administration Act which require an administrator such as an employer to accord an opportunity to persons (employees) who are likely to be affected by their decisions to be heard and make representations.

In Barclays Bank of Kenya Ltd & Another –vs- Gladys Muthoni & 20 Others the court in holding that consultation is necessary before redundancy notices are issued, it cited the provisions of Article 13 of Recommendation No. 166 of the ILO Convention No. 158 which requires consultation between employers and employees or their representatives before termination on account of redundancy is effected. This was in line with Articles 2(5) and (6) that recognizes International law as part of Kenyan law.

German School Society & another –vs- Ohany & another (Civil Appeal 325 & 342 of 2018(Consolidated)): The court held that the notice by the employer on intention to declare employees redundant opens up the door for consultation noting that it is an essential part  of the redundancy process and ensures that there is substantive fairness. It would therefore be unfair to terminate someone’s employment before he/she is heard and give his/her views.

The import of these decisions is that consultations are implicit under Section 40 of the Employment Act and the employer should never disregard the requirement of consultation as a slight mistake in the redundancy process may render the termination to be unfair and therefore unlawful.

The importance of consultation.

Consultation is meant to achieve the following;

1. To avert or minimize the terminations.

2. To come up with measures to mitigate the adverse effects of termination e.g. Finding alternative employment

3. To negotiate the best way out of redundancy or best way of implementing it if imminent.

The nature of consultation.

Suffice to note is that the courts have expressed that consultation should be real and not cosmetic, this was the ruling in Cammish vs Parliamentary service. The employer must have an open mind and take into considerations the suggestions given.

Murgor JA in the Kenya Airways Case was also of the opinion that the consultations must “be conducted with candor, reasonableness and commitment towards addressing the concerns of both management and the employees and focused on reaching solutions.”

Consultation therefore should be one of the main stages the employer should consider to prevent claims of unprocedural dismissal. It is an imperative and not just a mere requirement.

Employment Act Cap226

Kenya Airways Limited –vs- Aviation & Allied workers Union Kenya & 3 others (2014) eKLR

Cargill Kenya Limited –vs- Mwaka & 3 others (Civil Appeal 54 of 2019) KECA 115 (KLR)

German School Society & another –vs- Ohany & another (Civil Appeal 325 & 342 of 2018(Consolidated))

Barclays Bank of Kenya Ltd & Another –vs- Gladys Muthoni & 20 Others