Career progression: Do you have the right to be promoted?
Dell has released a Return To Office (RTO) arrangement stating that remote employees can continue to work from home, however, at the expense of their career progression. PHOTO | SHUTTERSTOCK
In the era of remote work, most international companies are embracing work-from-home (WFH) arrangements, especially in the post-Covid era. Like other major tech companies including Amazon, Google and Apple, Dell has revised its WFH policies since the pandemic ended.
In March 2024, Dell released a Return To Office (RTO) arrangement stating that remote employees can continue to work from home, however, at the expense of their career progression. Further, the "hybrid" staff are expected to start coming into the office about 39 days a quarter. In support of these changes, the management stated that "in-person connections paired with a flexible approach are critical to drive innovation."
The decision by Dell is most likely to affect the low-paid employees who choose to work remotely to minimise on expenses. The decision is also likely to affect Kenyan employees who offer services to the company remotely. The question that then arises is, within a Kenyan context, is the decision legal? In other terms, do you have the right to be promoted?
The answer can either be yes or no depending on the circumstances. This means that in particular instances you can sue your employer for not promoting you. The Employment Act does not expressly provide the employer with a duty to promote their employees. In fact, promotion by itself, excluding other extraneous circumstances is not a right of the employee.
However, Section 5(3)(b) of the Employment Act provides as follows: No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee- on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, marital status or HIV status; in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment.
In a situation such as the one experienced by the Dell remote employees, they can bring a suit on the basis of discrimination considering that they have the same rights as the hybrid workers and ought not be disadvantaged. In order to prove the discrimination, the employee would have to; Establish the basis for the discrimination; in this case, it would be with respect to promotion.
They would also have to demonstrate that they suffered adverse employment action, directly as a result of the nature of their jobs. Provide prima facie proof, that other explanations by the employer are pretexual, and there are no cogent reasons for the RTO arrangement.
Lastly, the employees must as a minimum, establish that there is a nexus between the adverse employment decision and the nature of their job. By meeting the above threshold, the employees might stand a chance of overturning the proposals made in the RTO arrangement.
However, it is important to note that despite the employer being obligated to consult employees before changing the terms of the contract, the employee need not agree to the changes as decided in the case of Emmanuel Wambua Muthusi & 6 others v Khoja Shia Ithna Ashari Education Board t/a Jaffery Academy [2020] eKLR.
Therefore, the employer still stands a chance of challenging the claims of the employees. However, each case stands to be reviewed on the basis of facts and evidence available. It would therefore be important to consult an employment law expert for legal advice.
Wesley Muriuki is an advocate of the High Court of Kenya.
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