The transfer of employees in Kenya is a common practice, especially within large organizations, public service, and disciplined forces, as a means to optimize operational efficiency. However, decisions from the Employment and Labour Relations Court (ELRC) have emphasized that while employers have the managerial prerogative to transfer employees, such decisions must be exercised reasonably and within the confines of the law as highlighted in Mary Nyangasi Ratemo & 9 others v Kenya Police Staff Sacco Limited & Utumishi Investment Limited [2013] KEELRC 791 (KLR).

For example, the Court of Appeal, in the case of Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR), affirmed the trial court’s finding that an employee who had been frequently transferred across different countries and regions, denied the opportunity to settle and progress in their career, and eventually resigned involuntarily due to an intolerable work environment, had experienced constructive dismissal.

This jurisprudence demonstrates the courts’ recognition of the need for fairness and consideration of employees’ circumstances when implementing transfers. It highlights that while transfers are an important tool for organizational efficiency, they must not come at the expense of employee rights or result in undue hardship.

Employee Transfers and the Rights of Workers with Dependents Facing Severe Physical or Cognitive Disabilities and Other Family Obligations

In cases involving employees with dependents requiring special care, the court has stressed that transfers should not impose undue hardship or infringe on constitutional rights, particularly those of children and persons with disabilities.

In a landmark decision on 19th December 2024, the Employment and Labour Relations Court of Kenya addressed the complexities surrounding the transfer of employees who have children with special needs and family responsibilities. The case, Kariuki & another v Attorney General & 2 others [2024] KEELRC 13501 (KLR), involved Inspector Isaac Kirimi Kariuki, a police officer transferred from Nairobi to Lokitang, and his co-petitioner, WWK, acting on behalf of their developmentally disabled son.

The petitioners contended that the transfer would disrupt the specialized care and education required for their son’s well-being, thereby infringing upon his rights under Articles 53 and 54 of the Kenyan Constitution, which safeguard children’s rights and the rights of persons with disabilities. They also argued that the transfer violated Inspector Kariuki’s rights to fair labour practices and fair administrative action as enshrined in Articles 41 and 47 of the constitution of Kenya, 2010. The court found that the petitioners had successfully demonstrated these violations.

Justice B. Ongaya, presiding over the case, emphasized the need to balance the operational requirements of the National Police Service with the constitutional rights of employees who have family responsibilities. The court referenced the ILO C156 – Workers with Family Responsibilities Convention, 1981 (No. 156), observing that although Kenya has not ratified the convention, it provides valuable guidance and persuasive authority. The court held that the petitioners were entitled to a remedy requiring the respondents to establish policies that ensure fair and non-discriminatory treatment of police officers with family responsibilities, such as the 1st petitioner.

The court further observed that while Kenya’s constitutional and statutory framework partially incorporates the principles of the convention, there is a need for explicit reinforcement through targeted legislative provisions, human resource policies, collective bargaining agreements, and the terms and conditions in individual employment contracts. The judgment also urged the ratification of the convention to strengthen these protections.

In its judgment, the court declared the transfer of Inspector Kariuki from Nairobi to Lokitang unfair, highlighting its detrimental impact on the well-being of his developmentally disabled son. It directed the respondents to consider the child’s specific needs when making future transfer decisions. Furthermore, the court mandated the development of a policy regulating the transfer of officers with dependents suffering from severe physical or cognitive disabilities, ensuring such families are not unduly burdened by administrative decisions.

The court emphasized the obligation of all employers to proactively protect employees with family responsibilities from discrimination and unfair treatment in both policy and practice. A directive was issued to the Ministry of Labour and Social Protection, along with employers’ and workers’ organizations, to prioritize the creation and implementation of policies, laws, practices, and terms of employment that safeguard the rights of workers with family responsibilities.

This judgment sets a significant precedent, underscoring the necessity for employers, to consider the familial responsibilities of their employees. It reinforces the constitutional protections afforded to children and persons with disabilities, ensuring that employment decisions do not inadvertently infringe upon these rights.

Moreover, the decision highlights the importance of developing comprehensive policies that address the unique challenges faced by employees with dependents requiring special care. By mandating the creation of such policies, the court aims to foster a more inclusive and considerate working environment, aligning administrative actions with the broader constitutional values of dignity, equality, and social justice. Employers are encouraged to adopt fair policies and processes that reflect both the operational goals of the organization and the rights of their workforce.

Researched and compiled by Wesley K’Ogangah, Associate. For further advice on any matters raised, please feel free to contact Wesley.

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