The extent to which an employer can change the terms of employment without the consent of the employee has always vexed employers but was severely tested during the Covid-19 pandemic. During that dark period, many employers found themselves unable to sustain their contractual obligations to the workers due to the financial and logistical challenges posed by the pandemic.
They urgently needed to adjust working conditions to accommodate the new realities, including redefining the working hours to incorporate remote working, implementing salary cuts, sending employees on compulsory leave and restricting entry to the office depending on vaccination, among others.
In the meantime, workers continued to wallow in the bliss of the misconception that the employer could not change the terms of employment without their consent.
This notion is derived from the principles of English common law which we inherited at independence. Under common law, a unilateral change of the terms of a contract by one party without the consent of the other amounts to a repudiation or breach of contract. Indeed, even in respect of contracts, changing the terms of employment is only valid if it has been mutually agreed upon by the employer and employee.
The employee’s consent may either be express or implied. It is implied where it can be inferred from conduct, for instance, where the employee has continued to work based on the revised terms without objection.
The preponderant but erroneous view among most employees is that the employer can only change the terms of employment with the employee’s express consent in writing. This is based on a misinterpretation of a certain provision in the Employment Act, which states that where any of the essential terms of employment changes, the employer shall, in consultation with the employee, revise the contract to reflect the change and notify the worker of the change in writing.
Unlike the English common law, the Kenyan Employment Act does not require the employee’s consent to proposed changes in the terms of employment. Since Kenyan law is codified in statute, the principles of English common law do not apply unless there is a lacuna in the statute.
Kenyan courts have, in several decisions including Emmanuel Wambua Muthusi & 6 others v Khoja Shia Ithna Ashari Education Board t/a Jaffery Academy [2020] eKLR, given the correct interpretation of the generally misunderstood provision and clarified that the law does not require the consent of the employee in the variation of employment terms.
The only duty upon the employer is to consult with the employee, revise the contract to reflect the change and, finally, notify the employee of the change in writing.
Since the words “consent” or “agreement” do not feature anywhere in the relevant statutory provision, it is not the duty of the court to imply them. If the legislature had intended to give employees such a right, nothing would have been easier than for the statute to expressly adopt the English common law position.
William Maema is a Senior Partner in the law firm of DLA Piper Africa, Kenya (IKM Advocates).
