Housing Allowance Cannot Be Unilaterally Reduced, Court Rules!

Author: Glene B. Komba.

Justice Stephen Radido in Kenya Private Workers Union v Africa Nazarene University [2020]eKLR ruled that house allowances may not be unilaterally altered to the disadvantage of the employees.

In lieu of an order sought by the applicant—Kenya Private Workers Union —that the court grants an order of temporary injunction restraining the respondent from effecting any house allowance reductions in respect of its unionisable employees the court held that the provisions of S.31 of the Employment Act 2007 that mandates employers to provide reasonable housing accommodation or a sufficient sum as rent is a statutory right for every worker."Such a provision constitutes a fundamental (basic) condition under the law which the employer may not be able to unilaterally alter to the disadvantage of the employee during the subsistence of the employment relationship unlike other particulars...."

Kenya Private workers union had moved to court after an unsuccessful negotiation meeting with the Africa Nazarene University following its decision to suspend learning and send all staff on unpaid leave due to the COVID19 pandemic.

The court took into account the provisions of S.10(5) of the Employment Act 2007 that obligates an employer to consult with employee or with the trade union before altering certain employment particulars.However,the respondent acted unilaterally in making the decision despite being  in a recognition agreement with the claimant.It was a finding of the court that the respondent's failure to consult with the union was in breach if law on change of employment particulars.

The court granted the order sought, considering the fundamental nature of the requirement for an employer to provide reasonable housing accommodation,and directed that the respondent continue paying full house allowance at pre-COVID-19 rates (including a refund of arreas) to all unionisable employees.pre-COVID-19

The court's decision reaffirms the role of employers in upholding the right to reasonable accommodation which has been characterized by the court as habitable, appropriately located and accessible.

Moreover,it underscores the importance of social dialogue and consultations among stakeholders during decision making processes with regards to employment and labour rights and responsibilities.

Furthermore it underpins the court's readiness and reliability to intervene in situations in which employees seek legal redress for the attempted alterations of housing allowances to their disadvantage.