Unilateral change of an employee’s Job Description amounts to constructive dismissal
Muchiri v Beiersdorf East Africa Limited (Cause E096 of 2022) [2025] KEELRC 502 (20 February 2025) (Judgment)
KOMM Advocates has further engendered the doctrine of constructive dismissal as one of the remedies in Kenya’s labour law jurisprudence. In a decision delivered on 20th February 2025 by Radido J in Muchiri v Beiersdorf East Africa Limited, the court found that it amounts to constructive dismissal for an employer to change an employee’s terms of service without consulting the employee.
The facts in summary may ring a bell for employers and employees alike. The Claimant worked for the Respondent as a Demand and Supply Planner. She went for maternity leave in May 2021. When she returned to work in October 2021, she was informed that her role was no longer available since there had been a change in Respondent’s organizational structure. She was told that she had been redeployed to the position of Logistics Coordinator but without losing any of her benefits.
Aggrieved, the Claimant took up the matter with her Line Manager. She expressed concern about the changes that had been effected unilaterally and which she deemed retrogressive to her career. In response, her line manager informed her that the redeployment was not retrogressive as she imagined. Her Line Manager also insisted that there would be no further discussions on the matter and the changes were final. She was required to report to her new position which was effective from the date when she resumed work from her leave.
Aggrieved, the Claimant resigned and instructed us to pursue the matter. Upon review of the material, we mounted a claim for constructive dismissal informed by the Claimant’s contract, the Employment Act and case law.
Upon hearing parties on merit, the Court agreed with us that an employer cannot change the terms of employment without prior consultation with the employee. Consultations are to be made before the changes become operative and not after. The court therefore awarded the Claimant an equivalent of 10 months’ salary as compensation for constructive dismissal as well as 2 months’ notice pay.
The court emphasized the procedure for changes as follows; Section 10(5) of the Employment Act, 2007, gives the requirements an employer should follow before varying an employment contract. It states: Where any matter stipulated in subsection (1) changes, the employer shall, in consultation with the employee, revise the contract to reflect the change and notify the employee of the change in writing The decision can be accessed on Kenya law through this link; https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/502/eng@2025-02-20
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