It is no surprise that during this Covid-19 pandemic season, companies have downsized their operations while others have resulted to close business until such times that normalcy shall resume. This has in turn declared position of such employees unnecessary and unneeded. However, in doing so, the employment must adhere to the laid out procedure and guidelines on redundancy as is provided under the Kenya Labour laws.

Failure to do this may attract a law suit on the employer; wherein the cost implications may exceed what he/she would have incurred, had he followed the laid out procedure. Such failure to adhere to the procedure may amount to unfair termination.Below is the Kenyan Labour law position on Redundancy;

1. What is Redundancy?

Subject to Section 2 of the Kenyan Employment Act 2007, redundancy has been defined to mean loss of occupation, job or career by involuntarily means through no fault of an employee.

Such termination is usually initiated by the employer where he opines that the services of an employee is unneeded or unnecessary.

2. Kenyan Labour Laws on Redundancy.

1. Constitution Kenya, 2010
2. The Employment Act, 2007
3. The Employment and Labour Relations Court Act, 2007
4. The Labour Relations Act, 2007
5. The Labour Institutions Act,2007
6. International Conventions Kenya is a party to like International Labour Organizations.

3.  Circumstances Redundancy may Occur?

1. Where the employer is no longer in business.

2. In an instance of restructuring of workforce at the company leading to some positions being rendered unnecessary.

3. In instances where the company is downsizing its operations thus rendering some positions unnecessary.

4.  Is Termination on Redundancy Legal in Kenya?

Yes. The Kenyan Labour Law specifically the Employment Act, 2007 grants the employer the rights to terminate an employee on grounds of redundancy as long as it is in accordance to the law.

5. Who can be terminated under Redundancy?

Any person considered to be an employee within the meaning of the Employment Act.

Under the Act, an employee has been defined as a person employed for wages or a salary and includes an apprentice and indentured learner.

This excludes; Independent contractors, casual employees and consultants who do not fall within the meaning of an employee and the employment act.

5. The Legal process of termination on Redundancy?

The procedure for termination is not only informed by Kenyan law but also recommendations made by the International Labour Organization (ILO) which Kenya is a state party to.

ILO requires consultation between the employers on one hand and the employees or their representatives on the other hand before termination of employment under redundancy.

In addition, the courts have previously held that such consultation is not a one day process as it must be participatory, consultative, and informative.

Subject to Section 40 (1) of the Employment Act, 2007 the procedure is as follows;

• Where the employee is a Member of a trade union

The employer is required under the law to inform the officials of the trades union within the area the employee is presently working not less than thirty days prior to the termination courtesy of redundancy.

• Where the employee is not a member of a trade union

The employer is mandated to inform the employee and the labour office in person through writing.

6. Should you receive any payment?

Yes, you are entitled to payment in case of termination through redundancy as way of compensation.

The three types of payment an employee will be entitled to include the following;

1. A Month’s Pay in lieu of notice

Subject to the Kenyan Labour Law, an employer who fails to give an employee a one month’s notice will have to pay the employee what they would have received that month if they had worked.

2. Severance Pay

In accordance to the Kenyan Labour law, where an employee has worked for a company or an organizations for at least a year they will be entitled to severance pay at the rate of not less than 15 days for each completed year of service.

This means, if for instance you have been an employee of a company for 10 years earning a salary of 100,000 Kenya shillings. Your severance pay will be your daily pay multiplied by 15 then your multiply it by the number of years worked.

3. Accrued Leave Days

An employer is also supposed to pay you accrued leave days not yet taken by the time of termination. They will pay you the daily rate times the number of days you have in cash.

Depending on the organization’s policy, any overtime allowance payable to the employee for overtime worked.

7. When can one sue their employer?

1. When the Legal process under the Law that has been stated above has not been followed by the employer.
2. When the employer does not clearly state the reasons your position has been declared redundant in the company.
3. When your position is not declared redundant and is given to someone else.

I hope this information has been helpful,we have shared the same on our youtube channel here;

1. Part 1 https://youtu.be/pJCzNZ0E_4A 
2. Part 2 https://youtu.be/RlVHhTtH1gk

If you have any question on termination of employment under redundancy? Leave them in the comment section below:

If you need help or consultancy on termination of employment under redundancy reach us on our website  by filling in the free evaluation or our email info@ruthtanuiadvocates.co.ke or contact us at 0738 372354.

Kindly Note: The content of this blog post is intended to be of general use only and should not be relied upon without seeking specific legal advice on any matter.