EIGHT IMPORTANT POINTS TO NOTE (FROM JUDICIAL OFFICERS) ON DEMOTION OF EMPLOYEES.

I have been going down the demotion rabbit hole and here are some things may seem obvious but are important to remember when effecting a demotion. These are from court precedents:

1. The ordinary English meaning of the word ‘demotion’ is “reduction in rank or status “. The meaning of the word ‘rank’ on the other hand is “place within a grading system”.? See Silvanus Lukoko Were v Ministry of Lands & Physical Planning & another [2020] eKLR
2. Employers cannot demote employees at will; the unilateral imposition of a demotion amounts to a fundamental breach of the contract of service. Demotion automatically alters an employee’s terms and conditions of service contrary to the provisoo of Section 10(5) of the Employment Act that provides that the terms of a contract of service cannot be altered without consultation with the employee. See Kiilu v Isinya Resorts Limited (Cause E022 of 2021) [2022] KEELRC 13240 (KLR) (17 November 2022) (Judgment)
3. Transfers are not a disciplinary or punitive action;
4. Demotions that are resultant of disciplinary action should be preceded by conducting the disciplinary procedures, giving an employee an opportunity to be heard as per the Company policy as well as the law.
5. The employee should be given the particulars of the charges facing them, allowed to mount a defense, properly heard as well as witnesses and a determination made. (See Dorothy Gatakaa Angaine v Teachers Service Commission [2021] eKLR)
6. In instances of disciplinary action, a demotion and salary reduction can only be resorted to as an alternative to termination upon the choice of an employee.? This is because of the consequences of a demotion. See Richard Kioko Kakuli v Sai Raj Limited [2020] eKLR
7. Where a transfer includes a reduction in status at a new station, the employer is obliged to explain to the employee why the action leading to reduction of status has been meted on them and also give opportunity to the affected employee to address why the employer should not take the intended action.
8. The demotion and/or salary reduction of public officers without notice, public participation, consultation and or consent of the affected public servants may otherwise be termed as unlawful, unreasonable, irregular and contrary to article 10(2) 41(1) & (2), and 47 of the?Constitution?and a violation of section 4 of the?Fair Administrative Action Act, 2015?. See Mathenge & 4 others v Inspector General of Police & 3 others; Kenya Human Rights Commission (Interested Party) (Judicial Review Application 032 & 41 of 2021 (Consolidated)) [2022] KEELRC 4872 (KLR) (29 September 2022) (Judgment)