The requirement for consulting employees before declaring a redundancy is not explicitly stated in section 40 of Kenya’s Employment Act, 2007. However, under the authority of Article 2(6) of the Constitution of Kenya, any treaties and conventions that the country has ratified become an integral part of Kenyan law. As Kenya has been a state party to the International Labour Organization (ILO) since 1964, it is consequently bound by the ILO conventions.
Specifically, Article 113 of Recommendation No. 166 of the ILO Convention No. 158, the Termination of Employment Convention, 1982, stipulates that consultation must take place between the employer, or the employer’s representatives, and the employee before an employment is terminated on the basis of redundancy.
Redundancy consultation is critically important for several key reasons, ensuring that the process is legally sound and ethically handled.
Legal Requirements
Before an employer proceeds with any redundancies, the law frequently requires consultation with employees or their representatives. For staff who are members of unions with a Collective Bargaining Agreement (CBA), consultation must be conducted with the relevant union representative. Failure to comply with these statutory requirements can lead to legal action and significant penalties.
Promoting Fairness and Transparency
Consultation affords staff members a voice in the decision making, which is crucial for guaranteeing a fair and transparent redundancy process. This interaction also gives employees the opportunity to express their concerns and ask questions about the decision, which can effectively alleviate their fears and uncertainties regarding their future employment status.
Exploring Alternatives to Job Loss
The consultation process is an effective tool for identifying alternative solutions to outright redundancy. Options such as redeployment within the organization, retraining for new roles, or reducing working hours are a few examples. By thoroughly exploring these options, it may be possible to reduce the number of necessary layoffs and provide affected staff with a better chance of finding suitable alternative employment.
Maintaining Employee Confidence
The announcement of redundancies can significantly impact overall employee engagement and confidence across the workforce. By ensuring staff feel they have a sense of involvement and participation in the decision making process, consultation can help mitigate these negative effects and maintain morale among remaining employees.
In view of these binding legal provisions and practical benefits, it is essential that employers treat redundancy consultation with the utmost seriousness. This commitment is necessary to ensure a fair and transparent process that minimizes the likelihood of litigation while limiting the negative consequences for affected employees.
