Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Everest Industries Limited & another (Cause E476 of 2024) [2025] KEELRC 1104 (KLR)
The bottom line
#A Kenyan employer cannot outsource staff to dodge union recognition, and the Employment Court will restrain victimisation and lockouts.
What this practically means
#Executive summary
#Key legal issues
#Whether an injunction should issue restraining the Respondent from victimising union members and locking them out of the workplace
The motion was merited; the interim injunction was confirmed because the Respondent's outsourcing of employees at the very time a recognition agreement was to be signed was construed as an attempt to defeat union participation.
The court found that the Respondent moved to transfer its workers to an HR firm immediately meetings to sign a recognition agreement were scheduled, and had absorbed some employees without disclosing the terms or whether they were consulted. The Respondent, on whom the Employment Act places the obligation to keep employee records, failed to produce its muster payroll to contradict the union's evidence. These actions were held to be in bad faith and motivated by the employees' union membership, contrary to Article 41 of the Constitution.
Whether the proposed 2nd Respondent should be joined to the proceedings
Joinder of Consolidated Human Resource Solutions Limited was allowed because the Respondent admitted outsourcing and transitioning employees to that firm, placing it at the centre of the dispute.
The Respondent expressly identified Consolidated Human Resource Solutions Limited as the HR firm from which it outsources labour and confirmed it was transitioning employees to that firm's service. This engagement placed the firm at the centre of the dispute, sufficiently justifying joinder. Having allowed joinder, the court also granted leave to amend the Memorandum of Claim so the Claimant could plead its case and reliefs against the new party.
Whether outsourcing can lawfully be used to defeat unionisation
Outsourcing is a lawful work arrangement, but it is unlawful where used to escape accrued obligations, to transfer employees without their acceptance, or to defeat participation in union activities.
The court acknowledged that employment can take diverse forms, including triangular outsourcing models. However, applying the Wrigley Company decision, an employer may not use outsourcing to escape accrued contractual obligations, must obtain the express acceptance of each affected employee before transferring their services, must settle outstanding obligations first, and outsourcing is unlawful if it introduces discrimination between employees doing equal work. Here, the timing and manner of the transition showed bad faith aimed at scuttling union participation contrary to Article 41 of the Constitution.
Legal principles established
#- Employers are not permitted to use outsourcing as a means to escape accrued contractual obligations, or to transfer employees to an outsourcing agency without each affected employee's express acceptance.
Court orders
#- 1.That the Respondent be and is hereby restrained by way of an order of injunction from victimizing the Applicant's members and/or perpetrating any further acts or forms of victimization, from coercing any of the Claimant's members to recant membership, interfering with their employment status, terms and conditions of employment for reasons of engaging in trade union activities.
- 2.That the Respondent be and is hereby restrained from locking out, and/or denying any of the Applicant's members access to the workplace for the performance of their duties under their respective employment contracts.
- 3.That the proposed 2nd Respondent, Consolidated Human Resource Solutions Limited, be and is hereby joined to this proceedings.
- 4.That the Applicant/Claimant is granted leave to file and serve an Amended Memorandum of Claim within 21 days of the order.
- 5.That costs shall abide the cause.
- Jurisdiction invoked
- Articles 36 and 41 of the Constitution; Sections 5(1) and (2)(c), 48, 74(a) of the Labour Relations Act, 2007; Section 87 of the Employment Act, 2007; Rule 17(5) of the ELRC (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Everest Industries Limited & another (Cause E476 of 2024) [2025] KEELRC 1104 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1104/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.