Kenya’s Ministry of Public Service and Human Capital Development issued a directive recently, giving senior civil servants to attain master’s degrees in two years or lose their jobs.

The directive affecting senior officers of grade CSG5 and above, including directors, principal secretaries, and heads of parastatal reportedly aims to address perceived skills gaps and enhance leadership effectiveness within the public service.

But a unilateral change of terms and conditions of service or contract without following the right procedure can and has in the past led to legal challenges for employers.

While an employer in Kenya can change the terms and conditions of employment, the employer must follow a certain prescribed process. Firstly, the employer should hold consultations with a view to securing the concurrence of the employee in question before providing a written notice of the proposed changes. The purpose of the consultations is to obtain express or implied consent of the employer.

In terms of consultation, employers are required to sufficiently consult with employees before making significant changes to their employment terms. A requirement such as the one for additional educational or professional qualification, over and above what was required at the time of initial appointment, and that may require time and resources to pursue and achieve, is so significant that the cadres so affected may find it unreasonable, especially if they some of them were to oppose the changes on account of not being able to attain the new requirement as a precondition for remaining in employment.

And this is precisely the reason an enabling environment, characterised by open communication and a genuine attempt to reach an agreement on any proposed changes is critical.

For instance, postgraduate studies require some levels of educational and academic qualifications. Some of the senior civil servants who will be affected by the demand for Masters Degrees may have been recruited on account of being holders of a bachelor’s degree in a relevant field, but which may not guarantee them admission for postgraduate academic pursuits.

Unless the grading has changed recently, First-Class Honours (70 percent and above) has been the highest classification; followed by Second-Class Honours, Upper Division (60-69 percent); and Second-Class Honours, Lower Division (50-59 percent).

There is also Third-Class Honours (40-49 percent), the lowest honours classification, and finally an Ordinary Degree or Pass (below 40 percent), a degree nevertheless, but without honours classification.

In many academic and professional contexts, classification of a degree has implications on whether one can pursue further studies. In most jurisdictions, Kenya included, pursuit of postgraduate education has been a preserve for holders of First Class or Second Upper Division Honours, with Second Class Honours, Lower Division having to demonstrate extensive related work experience to qualify.

One possible consequence, therefore, of the PSC directive is that some of the affected employees who may not qualify or have the wherewithal to pursue postgraduate education may opt to resign, a development that could still be construed as a breach of contract, and lead to claims of constructive dismissal.

The writer is the Executive Director of the Kenya National Civil Society Centre, and Chairperson of the Horn of Africa Civil Society Forum;  [email protected]