Some multinational firms in Kenya have been hit with labour disputes stemming from events following the departure of senior employees on maternity leave.
The new mothers argued they had been targeted because of their pregnancies and their positions handed to juniors to make their stay untenable.
How did the courts rule?
One such case involves Beiersdorf East Africa Limited. When Nancy Muchiri went on maternity leave in May 2021, she was a demand and supply planner at the German-owned company that is the manufacturer of the popular skincare brand Nivea.
However. when she resumed duty after six months, on October 4, 2021, Ms Muchiri was informed of her new role, that of customer service and logistics coordinator. In her view, this redeployment was a demotion because in the new role, she was required to report to a colleague who she had previously supervised.
Ms Muchiri immediately raised her grievances about the changes, maintaining that she had not been consulted. But the company informed her the decision would not be reversed.
She then sued Beiersdorf in 2022 at the Employment and Labour Relations Court, alleging unfair termination of employment, breach of contract and discrimination.
In its defence, the Nivea maker explained to the court that two months before Ms Muchiri proceeded on maternity leave, the firm had hired Africope to restructure its operations in Africa.
According to the company, several consultative meetings were held with Ms Muchiri and she had indicated that she was only intent on taking on the role of import and export planner, and not that of logistics coordinator. The company cited further consultative meetings between Ms Muchiri and her line manager. Beiersdorf also provided email correspondence between Ms Muchiri and the company’s talent manager, as well as an appointment letter to her new role dated October 12, 2021.
The Nivea manufacturer had also denied Ms Muchiri's claims that the redeployment was a demotion.
The court, however, wasn't convinced.
“From the material on record, it is clear that Africope affected the operations of the respondent (Beiersdorf ) across the continent of Africa, including operations from Ghana and Kenya. Such a project must have been a significant exercise, and the court would have expected the respondent, as a reasonable employer, to bring the changes to the notice of its employees and, more so, those to be affected formally. The respondent did not place before this court any general formal communication to its employees that it was in the process of restructuring. Neither did the respondent produce in court any formal communication to the claimant (Ms Muchiri) that her role would be affected during the restructuring exercise and asking her to give her views,” stated the judge.
According to the judge, Ms Muchiri was only involved in some semblance of engagement after her return from maternity leave.
“An email from the claimant (Ms Muchiri) to her line manager on October 5, 2021 refers to a meeting on October 4, 2021, wherein she was informed of a fait accompli, that she would not continue in her role as demand and supply planner, and that she had been offered the role of logistics coordinator. The claimant registered her reservations. The respondent (Biersdorf) has not demonstrated that it formally consulted with the claimant (Ms Muchiri) before informing her of the change of roles on 4 October 2021,” noted the judge.
The court further observed that provisions of the letter of appointment may only be varied by agreement in writing signed by both her and the company. It agreed that Biersdorf had violated the Employment Act by unilaterally altering her role and working conditions.
“There is no evidence placed before the court that the respondent (Biersdorf) secured the written agreement of the claimant (Ms Muchiri) before varying the terms of employment. The court finds the variations by the respondent contravene both section 10(5) of the Employment Act, 2007, and clause 16 of the contract of employment.”
The judge, however, dismissed Ms Muchiri’s claims that she was subjected to discrimination. Ms Muchiri had argued the company had used her pregnancy to change her role.
She argued that she was the only employee who was affected by the reorganisation that happened during her maternity leave. Biersdorf denied the allegations, stating that it supported Ms Muchiri both financially and emotionally during her difficult pregnancy and that another member of staff, a former logistics coordinator, was also affected by the restructuring.
The judge, however, maintained that there was enough proof to show that indeed Biersdorf had violated the employment and labour laws by the changes it made, forcing Ms Muchiri to resign involuntarily.
“The court has concluded this was a case of constructive dismissal. The circumstances leading to the claimant’s resignation were not of her making,” the judge stated in a February 2025 judgment.
Constructive dismissal
Constructive dismissal occurs when an employee is effectively pushed out of their job, leaving resignation as the only realistic option.
“Considering these factors, the court is of the view that the equivalent of 10-months’ gross salary as compensation would be fair (gross monthly salary was Sh251,238. The claimant left employment at the prompting of the respondent’s conduct. The employment contract provided for 1 month's salary in lieu of notice. The court finds the claimant is entitled to Sh246,952 (basic salary) pay in lieu of notice. Total Sh 2,759,332. The awards to attract interest at court rates from the date of judgment.”
Biersdorf immediately challenged the decision with the court granting the company a stay of execution until the appeal is determined. The award has risen to Sh3 million.
Tetra Pak case
In another case, Melanie Muthoni Gichuki walked out of her office on August 2021 to have a baby. However, she never got her job back.
For six years, Ms Gichuki had served as customer service, design and logistics manager at Tetra Pak Kenya Ltd, a Swedish food packaging company. She oversaw operations across East Africa. Her leave ran from August 2, 2021 to January 24, 2022. While she was away, her duties were handed to her junior. During this period, the company also announced a global restructuring that would see some roles declared redundant.
Ms Gichuki caught wind of the changes and briefly resumed from her leave to attend a meeting on November 19, 2021. She was informed that her position was under review but was assured consultations would follow before any final decision. She left that meeting with a proposed notice redundancy letter in hand. It raised no concerns about her performance and promised discussions about possible alternative roles. The notice indicated that there would be consultations for a period of 60 days on alternative positions to avert the redundancy before a final decision on January 31, 2022.
But those consultations never quite materialised.
By then, her role had already been split into two positions with reduced responsibilities, one of which was handed to her junior.
As her leave drew to a close, she reached out to the head of human resources via email on December 20, 2021 pressing for clarity on those promised consultations. The manager said her role was still proposed for redundancy. On January 31, 2022 Ms Gichuki was informed that her position had been declared redundant.
She was issued with a termination letter dated January 31, 2022, which she signed.
But even after that, she asked whether an alternative role existed for her. She was told there were no suitable alternatives. The company argued that the new roles were junior positions and offering them to her would amount to a demotion.
In his written evidence to court, the company’s managing director stated that the restructuring was driven by a genuine need to enhance customer focus and improve overall performance. The MD maintained Ms Gichuki was not considered for the new roles because they were below her seniority level, and also cited performance concerns.
However, cracks appeared in that argument.
One of her seniors, who sat in the global board of the company during the restructuring process, stated that he had no information that Ms Gichuki’s role would fall off. He explained that the board could not make specific decisions in the clusters, and that it was upon each cluster to decide on specific restructuring.
Another of Ms Gichuki’s senior claimed she was unsuitable due to leadership and performance issues.
In his analysis of the matter, the judge noted that Tetra Pak didn’t offer Ms Gichuki a genuine opportunity to be heard or be considered for any options available to avert or mitigate the effects of the redundancy if it was inevitable.
However, the court rejected Ms Gichuki’s claim that she had been deliberately targeted because of her pregnancy, noting that the restructuring affected multiple employees.
“The evidence on record shows that the restructuring was a global initiative announced by the President of Tetra Pak Global on 31st August 2021.”
Ms Gichuki had sought to be awarded terminal dues of Sh32,801,669 being a summation of one month's salary in lieu of notice (Sh708,671), unpaid house allowances (Sh5,628,168.00), unpaid leave days (Sh330,713), severance pay (Sh10,630,065) and 12 months pay compensation (Sh8,804,0520
But the judge only awarded her Sh2,834,685.28 noting that her terminal dues had already been computed and paid.
Follow our WhatsApp channel for breaking news updates and more stories like this.
