Kenya Union of Domestic, Hotels,Educational Institutions, Hospitals and Allied Workers v Association for the Physically Disabled of Kenya [2015] KEELRC 1303 (KLR)
The bottom line
#A Kenyan court ruled disabled employees' redundancies were lawful, but ordered all 24 reinstated because disabled workers deserve special legal protection.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification of the redundancy
A genuine redundancy situation existed, established by financial statements and the failed attempts to obtain Government funding, so the termination was substantively valid.
The Claimant did not seriously challenge the existence of the redundancy. The Respondent's financial statements showed declining reserves from 2007, worsened by post-2007 electoral violence and the 2009 international economic crisis, which caused overseas customers to dwindle. Attempts to obtain funding from Government and the National Development Fund for Persons with Disabilities failed, and a second redundancy in as many years was foreseen.
Procedural fairness of the redundancy under the Employment Act and CBA
The procedural requirements were honoured: three months' individual notices, notice to the Trade Union and Labour Office, consultations, and a lawful selection criterion.
Notices issued on 27th September 2012 to take effect at end of year, satisfying the CBA's three-month requirement. The Court held both individual and collective notices are required under the CBA and Employment Act. Consultations took place with the Labour Office's aid, and only a specific class of jobs held by disabled employees was affected, with no comparators in longevity, so last-in-first-out was not breached.
Reinstatement of disabled employees as a protective remedy
Although the termination was lawful, the Grievants, as disabled persons, are a special class requiring the Court's protection and were reinstated despite the Respondent's claim that reinstatement was not workable.
The Court weighed the legality of the redundancy against the constitutional and international framework protecting disabled persons' right to work, including Article 54 of the Constitution, the Persons with Disabilities Act, and the UN Convention on the Rights of Persons with Disabilities under Article 2(6). It criticized the Government's failure to assist and used reinstatement to preserve both the Respondent and the Grievants' right to work, offsetting received terminal benefits.
Legal principles established
#- Persons with disabilities are a special category of employees whose terms and conditions of employment cannot be fully addressed through the Employment Act alone; the Court must consider other legal instruments regulating the lives of persons with disabilities.
- Consultations are a prerequisite of a fair redundancy and must take place at every turn.
- The employer's general obligation to issue individual termination notice under Section 35 of the Employment Act is not abrogated by a redundancy notice issued to the trade union under Section 40.
- The National Development Fund for Persons with Disabilities may lawfully contribute to the payment of disabled persons' salaries in organizations of or for persons with disabilities.
Court orders
#- 1.A declaration that the Respondent's decision terminating the Grievants' contracts was made within the law and the CBA and was legally fair
- 2.Reinstatement of the Grievants to their jobs without loss of salaries, seniority, privileges and other benefits
- 3.Any terminal benefits received by the Grievants to be offset from their salaries accrued from January 2013
- 4.The Grievants to report to their former workstations at 8.00 a.m. on 1st June 2015 for assignment of duty
- 5.Parties to communicate the Decision to the Government of Kenya
- 6.No order on costs
- Jurisdiction invoked
- Industrial Court jurisdiction under the Industrial Court Act, invoking Rule 27(1)(a) of the Industrial Court (Procedure) Rules 2010; dispute referred under the Employment Act framework
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels,Educational Institutions, Hospitals and Allied Workers v Association for the Physically Disabled of Kenya [2015] KEELRC 1303 (KLR)", Case Analysis (2015). Cause Number 348 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1303/eng@2015-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.