Making Changes to an Employee’s Contract of Employment in Kenya
1. Can an employer change an Employee’s Terms of Employment
Yes, but only in accordance with the law. According to Section 10 (1) and (2) of the Employment Act, a written contract of service must state contain the following particulars of employment: –
- the name, age, permanent address and sex of the employee
- the name of the employer
- the job description of the employment
- the date of commencement of the employment
- the form and duration of the contract
- the place of work
- the hours of work
- the remuneration, scale or rate of remuneration, the method of calculating that remuneration and details of any other benefits
- the intervals at which remuneration is paid; and
- the date on which the employee’s period of continuous employment began, taking into account any employment with a previous employer which counts towards that period; and;
- any other prescribed matter
Section 10 (5) further provides that “where a matter stipulated section 10 (1) the particulars of employment changes, the employer shall in consultation with the employee, revise the contract to reflect the change and notify the employee of the change in writing.”
2. What does it mean to consult an employee?
Consultation therefore involves providing the employee with clear information about the proposed change and offering them a genuine opportunity to ask questions or raise concerns. This can take place through union representatives where applicable, or—if the employee is not unionised—through one-on-one meetings or group forums.
3. Does the employee have to consent to the proposed change?
No. Employee consultations do not need to end in consensus or employee consent.
4. Can an employee refuse the proposed change to their contract?
5. What happens if the employee refuses to accept the proposed change to the contract after consultation?
If, after a genuine consultation process, the employee still refuses to accept the proposed change, the employer may proceed to issue a written notice of the change and present a revised contract for the employee to sign. At this stage, the employee may choose to accept the new terms by signing the contract or may exercise their right to terminate the employment relationship.
The employer should keep records of the consultation process—such as meeting minutes, email correspondence, or internal memoranda—to demonstrate that the employee was adequately informed, heard, and given a fair opportunity to respond to the proposed changes.
6. Does the consequent termination imply that there was constructive dismissal of the employee?
It depends on the circumstances of the specific case. Constructive dismissal may arise where the employer’s conduct constitutes a fundamental breach of contract—such as conduct that goes to the root of the employment relationship or clearly indicates that the employer no longer intends to be bound by one or more essential terms of the contract. In such cases, the employee is entitled to treat the contract as terminated and may resign in response to the employer’s actions.
7. Can an Employer rely on a general variation clause in the contract to make unilateral changes?
No. A general variation or flexibility clause in an employment contract does not give the employer unlimited authority to unilaterally alter the terms of employment. Section 10(5) of the Employment Act is framed in mandatory terms—it requires that any changes to the particulars of employment must be preceded by consultation with the employee, written notification, and a formal revision of the contract to reflect the agreed changes. Employers must therefore follow due process, regardless of any general variation clause in the contract.
8. Are there any exceptions where an employer can make immediate changes without consultation?
9. What is the risk of implementing changes without following due process?
10. How should the changes to the employee’s contract be documented?
