🔊 Listen: Can you refuse a job transfer in Kenya? (2 min audio summary)
Few workplace questions come up as often as this one: if my employer moves me to a different role, do I have to accept it? Can you refuse a job transfer in Kenya, and if you refuse and lose your job, can you claim constructive dismissal? A June 2026 judgment from the Employment and Labour Relations Court (ELRC) gives a clear, practical answer that both employers and employees should understand.
The Facts of Softcare Kenya Company Limited v Mutungi
The employee worked in a noisy factory environment and developed hearing complications. A doctor advised her to avoid noise exposure after diagnosing a hearing condition linked to her workplace. In response, the company moved her from packaging to cleaning duties, which it described as an effort to accommodate her medical condition.
She declined the new role and insisted on a transfer to a security position, which the employer said did not exist within its structure. Her refusal led to disciplinary proceedings, and the employer eventually terminated her employment on the ground that she had disobeyed lawful instructions.
She went to court arguing constructive dismissal and unfair termination, and the trial court agreed, awarding her 12 months’ salary of KSh259,668 as compensation.
What the ELRC Decided on Appeal
Sitting in Machakos, the ELRC overturned that award, holding that rejecting a job transfer does not automatically amount to unfair termination or constructive dismissal. Lady Justice Jemimah Keli found the evidence did not support constructive dismissal, noting that the employee turned down a reasonable reassignment and demanded a position that was not available.
The Judge made three findings worth highlighting:
- No resignation, no constructive dismissal. Because the employee never resigned, constructive dismissal could not be invoked at all; her services had been terminated.
- Due process was followed. The employer had followed due process before ending the relationship, and the termination complied with Section 41 of the Employment Act.
- Reasonable accommodation was offered. The Court was satisfied that the employer “offered reasonable accommodation” for the employee’s condition while the employee did not cooperate without a valid reason.
The 12 month award was set aside and replaced with one month’s salary in lieu of notice (KSh21,639), and the company was ordered to issue a certificate of service.
Why This Ruling Matters if You Refuse a Job Transfer in Kenya
Constructive Dismissal Requires a Resignation
In Kenyan law, constructive dismissal arises where an employer’s conduct makes continued employment so intolerable that the employee is forced to resign. The Court of Appeal set out this test in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga (2015). The Softcare decision reinforces a simple point: where the employer terminates the contract, the employee’s claim is one of unfair termination, not constructive dismissal. Choosing the wrong legal route can weaken an otherwise valid case.
Employers May Reassign Staff, but Reasonably
A transfer made in good faith, for a legitimate reason such as protecting an employee’s health, is treated very differently from a transfer used as punishment, a demotion in disguise, or a way to push someone out. Key factors include whether pay and terms are preserved, whether the new role is suitable, and whether the employee was consulted.
Refusing a Lawful Instruction Carries Risk
Under Section 44(4)(e) of the Employment Act, knowingly refusing to obey a lawful and proper command that falls within an employee’s duties may amount to gross misconduct. An employee who disagrees with a transfer is better served by raising concerns in writing, requesting medical or other supporting evidence to be considered, and using internal grievance channels, rather than refusing outright.
Procedure Still Decides Many Unfair Termination Cases
The employer succeeded largely because it followed Section 41: the employee was informed of the reason for the intended termination, given a hearing, and allowed to respond. Under Sections 43 and 45, an employer must prove a valid reason and a fair procedure. Many employers with a genuine reason still lose in court because they skip these steps.
Practical Takeaways on Refusing a Job Transfer in Kenya
For Employers
- Document the business or medical reason for any transfer.
- Keep terms of employment intact where possible.
- Consult the employee before implementing changes.
- Where refusal leads to disciplinary action, follow Section 41 strictly and keep records of every step.
For Employees
- If you believe a transfer is unfair, respond in writing and explain your reasons with supporting evidence.
- Understand that remaining in employment and contesting a transfer is different from resigning in protest.
- Seek legal advice early, before taking a step that may limit your options.
FAQs: Can You Refuse a Job Transfer in Kenya?
Can an employer transfer you to a different role in Kenya?
Yes, where the transfer is made in good faith for a legitimate reason, such as protecting an employee’s health. Courts look at whether pay and terms are preserved, whether the new role is suitable and whether the employee was consulted.
Is it gross misconduct to refuse a job transfer in Kenya?
It can be. Under Section 44(4)(e) of the Employment Act, knowingly refusing to obey a lawful and proper command that falls within your duties may amount to gross misconduct. The outcome depends on whether the instruction was lawful and reasonable, and whether you had a valid reason to refuse.
If I refuse a job transfer in Kenya and I am dismissed, is it constructive dismissal?
Generally, no. Constructive dismissal requires the employee to resign because the employer’s conduct made continued employment intolerable. Where the employer terminates the contract, the proper claim is unfair termination, as the ELRC confirmed in Softcare Kenya Company Limited v Mutungi [2026].
Conclusion: Reasonableness on Both Sides
The Softcare ruling does not give employers unlimited power to move staff, nor does it strip employees of protection. It confirms that the courts will look at reasonableness on both sides: whether the employer acted in good faith and followed due process, and whether the employee had a valid reason to refuse a job transfer. For anyone asking whether they can refuse a job transfer in Kenya, the answer depends on both. In workplace disputes, how each party conducts itself often matters as much as the underlying disagreement.
Need Guidance on a Workplace Transfer or Termination?
The Employment and Labour Relations team at Otwal & Partners LLP advises employers and employees on transfers, disciplinary processes, termination procedures, constructive dismissal claims, and ELRC litigation. If you are facing a reassignment, a disciplinary hearing, or a dispute over termination, our team can help you understand your rights and obligations before you act.
Disclaimer: This article is provided for general information and educational purposes only and does not constitute legal advice. Reading it does not create an advocate and client relationship with Otwal & Partners LLP. Every employment matter turns on its own facts, and readers should seek specific legal advice before acting on any information contained here. The summary of Softcare Kenya Company Limited v Mutungi [2026] is based on publicly reported information and should be read alongside the full judgment on Kenya Law.