Gladys Muthoni Mwangi & 20 others v Barclays Bank Of Kenya Limited & another [2016] KEELRC 1186 (KLR)
The bottom line
#A Kenyan court stopped Barclays' Nairobi office redundancy because the bank skipped mandatory legal steps, protecting the employees' jobs for now.
What this practically means
#Executive summary
#Key legal issues
#Compliance with section 40 of the Employment Act in declaring redundancy
The redundancy notice issued by the 2nd Respondent failed section 40(1)(a) as it was not copied to the Labour Officer and the mandatory statutory requirements were not met; the notice is of no legal value and was lifted
Section 40 sets the minimum statutory redundancy procedures, requiring a valid and fair reason based on operational requirements and notice of not less than one month to employees and the labour office. The 14th January 2016 notice was issued by the 2nd Respondent, was not copied to the Labour Officer, yet the 1st Respondent relied on it to issue termination letters. The requirements are mandatory and non-compliance negates the entire purpose of redundancy.
Whether both Respondents are necessary parties given the secondment arrangement
Both Respondents are necessary parties whose responsibility to the Petitioners cannot be delinked
The Petitioners were employed by the 1st Respondent and seconded to the 2nd Respondent. One declared the redundancy while the other issued termination letters. Removing either would create a lacuna and render the Court's adjudication academic. Who the employer was and the implications of secondment can only be unravelled at a full hearing.
Disclosure of redundancy selection criteria and documents
Where section 40(1)(a) notice is procedurally issued, disclosure of criteria and documents follows within the statutory consultations; the notice must be accompanied by reasons for, and the extent of, the intended redundancy
The court held that once a proper notice under section 40(1)(a) is issued, the criteria and records become accessible within the consultations contemplated by section 40, which is especially necessary for non-unionised employees. An employer must give reasons for and the extent of the redundancy even where an entire office is affected, before issuing termination notices.
Involvement of the Labour Officer in redundancy
The attendance of the Labour Officer is a mandatory governmental participation in the redundancy process, not mere information sharing
Citing David Matovu v Africa Nazarene University, the court emphasised that parties must engage in consultations and involve the Labour Officer as a source of reference to guide the entire process, given the traumatic nature of job loss and the public policy dimension of involuntary loss of employment.
Legal principles established
#- Section 40 of the Employment Act sets mandatory minimum redundancy procedures which are not at the option of the employer, including notice of not less than one month to employees and the labour officer
- Where an employer and a seconded-to entity are intertwined, one cannot declare redundancy while the other issues termination; both are necessary parties
- A redundancy notice issued without compliance with section 40(1)(a), including notice to the Labour Officer, is of no legal value
Court orders
#- 1.Conservatory orders restraining the Respondents from closing down or ceasing operations of their Africa Regional office in Nairobi; terminating, declaring redundant or in any manner relinquishing the services of the Petitioners, or transferring any job functions vested in such office to any other location other than Nairobi pending hearing of the Petition
- 2.The notice dated 14th January 2016 issued at the instance of the 2nd Respondent is lifted
- 3.Parties to exchange responses and submissions and be allocated a hearing date within the next 30 days for hearing and disposal of the Petition
- 4.Costs of the application to the Petitioners
- Jurisdiction invoked
- Constitution of Kenya, Articles 27 and 41 (fair labour practices), read with section 40 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gladys Muthoni Mwangi & 20 others v Barclays Bank Of Kenya Limited & another [2016] KEELRC 1186 (KLR)", Case Analysis (2016). Petition (Employment and Labour Relations Court), Notice of Motion dated 15th March 2016, Amended 21st March 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1186/eng@2016-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.