Unfair Termination in Kenya: What Employers and Employees Should Know

Losing a job can be financially and emotionally difficult. For an employer, terminating an employee can also be a serious decision with legal consequences if the proper procedure is not followed.

In Kenya, employment relationships are governed by legal obligations that apply to both employers and employees. An employer generally cannot simply terminate an employee because they no longer want them in the workplace without considering the applicable law, the terms of the employment relationship and the circumstances surrounding the termination.

At the same time, not every termination of employment is automatically unfair.

Understanding the difference is important for both employers and employees.

What Is Unfair Termination?

In simple terms, termination may be considered unfair where an employer does not have a valid and fair reason for ending the employment relationship or does not follow the required procedure.

This means that two separate questions can arise.

First, why was the employee terminated?

Second, how was the termination carried out?

An employer may have a genuine reason for wanting to terminate an employee but still expose the business to legal risk by failing to follow the required procedure.

Conversely, following a procedure does not necessarily make a termination lawful if the underlying reason is not legally sustainable.

Both aspects therefore matter.

Can an Employer Terminate an Employee?

Yes.

An employer is not required to retain an employee indefinitely.

There may be legitimate circumstances in which employment comes to an end, including misconduct, poor performance, redundancy or other recognised grounds.

However, the fact that an employer has the power to terminate employment does not mean that the power can be exercised arbitrarily.

The employer must consider the applicable employment law, the employment contract and the circumstances of the particular case.

The Importance of a Valid Reason

Where an employer terminates an employee, the reason for the termination can become extremely important if the decision is challenged.

Consider an employee who is dismissed for alleged misconduct.

The employer should be able to demonstrate the basis for the allegation rather than simply stating that the employee was "difficult" or that management had lost confidence in them.

Similarly, where poor performance is relied upon, the employer should be able to demonstrate the performance concerns and the steps taken to address them.

The more serious the allegation, the more important it becomes to have proper documentation and evidence.

What Is Procedural Fairness?

Even where an employer believes that there is a valid reason for termination, the employee should generally be given an appropriate opportunity to respond to the allegations or concerns affecting the employment decision.

This is particularly important in disciplinary matters.

An employee should not ordinarily discover that they have been dismissed only after receiving a termination letter based on allegations they were never given an opportunity to address.

A fair process allows the employee to understand the concerns and respond before a final decision is made.

This is not simply a technical requirement.

It gives the employer an opportunity to hear the employee's explanation and potentially discover information that may affect the decision.

What If the Employee Has Committed Misconduct?

Misconduct can justify disciplinary action, including termination in appropriate circumstances.

However, employers should distinguish between an allegation and an established disciplinary issue.

For example, an employee may be accused of taking company property.

The employer should investigate the circumstances rather than immediately treating the accusation as proven.

There may be an explanation, mistaken identification or other evidence that changes the situation.

A proper disciplinary process can help the employer establish the facts and determine an appropriate response.

What About Poor Performance?

Poor performance can be a legitimate concern for an employer.

However, performance management should not simply be used as a convenient explanation for removing an employee.

Where an employee is struggling to meet expectations, the employer should be clear about the standards expected, identify the areas of concern and provide appropriate opportunities for improvement in accordance with the applicable legal and contractual requirements.

Documentation is particularly important.

Performance discussions, warnings, improvement plans and other relevant records can help demonstrate what happened if the matter later becomes disputed.

What Is Summary Dismissal?

Summary dismissal is a form of termination in which employment is ended without notice in circumstances permitted by law.

It is generally associated with serious misconduct or other circumstances recognised by the applicable employment framework.

Because summary dismissal can have significant consequences for an employee, employers should exercise caution before relying on it.

An allegation of serious misconduct should not automatically be treated as sufficient justification for summary dismissal without considering the facts and applicable legal requirements.

What Happens During Redundancy?

Redundancy is different from disciplinary termination.

An employee may lose their job because the employer no longer requires a particular role or because the business is restructuring.

This does not necessarily mean that the employee has done anything wrong.

However, redundancy is subject to legal requirements.

An employer should not simply label a termination "redundancy" when the real reason is misconduct, poor performance or another unrelated issue.

The circumstances and process should be examined carefully.

What Rights Does an Employee Have After Termination?

An employee who believes that their employment was unlawfully or unfairly terminated may have legal options.

The appropriate remedy depends on the circumstances of the case.

Depending on the facts and applicable law, a claim may involve compensation or other forms of relief.

However, an employee should not assume that every dismissal automatically results in compensation.

The circumstances surrounding the termination, the employee's contract, the employer's reasons and the procedure followed all matter.

What Should an Employee Do After Being Dismissed?

An employee who believes their termination was unfair should preserve relevant documents.

These may include:

• The employment contract.

• Payslips and payment records.

• Warning letters.

• Performance reviews.

• Emails and messages relating to the dispute.

• Disciplinary notices.

• The termination letter.

• Any correspondence exchanged after termination.

It is also important to pay attention to applicable legal timelines.

Employment disputes can be subject to limitation periods and procedural requirements. Waiting too long before seeking advice may affect the available legal options.

What Should an Employer Do Before Terminating an Employee?

Employers should avoid making termination decisions impulsively.

Before taking action, the employer should establish the facts, identify the legal and contractual basis for the proposed action and consider the appropriate procedure.

Employment policies should also be consistent with the applicable law.

Good employment records are valuable.

If a dispute arises months later, an employer should be able to demonstrate what happened, why the decision was made and what process was followed.

A properly documented employment process can therefore protect both the employer and the employee.

Can an Employee Be Terminated During Probation?

Probationary employment has particular legal considerations.

An employer should not assume that an employee on probation has no legal protections simply because they have not yet completed probation.

The applicable law and the terms of the employment relationship should be considered before termination.

Similarly, an employee should not assume that being on probation automatically means that termination is unlawful.

The specific circumstances matter.

Can an Employee Be Fired for Complaining About Their Rights?

Employees may raise legitimate concerns about pay, working conditions, discrimination, harassment or other workplace issues.

An employer should be cautious about taking adverse action simply because an employee has raised a legitimate workplace concern.

Where termination follows closely after a complaint, the circumstances may require careful examination.

Employers should ensure that disciplinary or termination decisions are based on legitimate reasons supported by evidence rather than retaliation.

Why Employment Contracts Matter

Many employment disputes can be reduced by having clear employment contracts from the beginning.

A good employment contract should clearly establish important terms such as remuneration, duties, working hours, leave, notice and other applicable conditions.

The contract should also be consistent with the minimum protections required by Kenyan employment law.

Employers should periodically review employment contracts and workplace policies rather than assuming that documents prepared years ago still adequately reflect the law and the business's current operations.

Can Employment Disputes Be Settled?

Yes.

Not every employment dispute needs to proceed to a full hearing.

Depending on the circumstances, the parties may negotiate a settlement or use an appropriate dispute-resolution mechanism.

Settlement can sometimes provide a practical solution for both parties.

For an employer, it may reduce the uncertainty and cost associated with prolonged proceedings.

For an employee, it may provide a quicker resolution and certainty about the outcome.

However, any proposed settlement should be carefully reviewed before it is accepted.

Why Employers Should Take Employment Law Seriously

For a growing business, employment disputes can become expensive.

The direct costs may include legal expenses and potential awards. There can also be indirect costs involving management time, employee morale and reputational concerns.

Good employment practices can help prevent many of these problems.

This includes using proper employment contracts, maintaining accurate records, implementing appropriate workplace policies and following fair procedures when disciplinary or termination decisions are necessary.

Conclusion

Employment termination is not simply a management decision. It is a legal process that can have significant consequences for both the employer and the employee.

For employers, the key lesson is that having a reason for termination is only part of the equation. The employer should also ensure that the applicable procedure is followed and that the decision is properly documented.

For employees, being dismissed does not automatically mean that the termination was lawful or unlawful. The circumstances, reason and procedure need to be examined.

At G.K. Kimani & Associates Advocates, we advise employers and employees on employment law matters, including employment contracts, disciplinary proceedings, termination, redundancy and employment disputes.

If you are an employer considering terminating an employee, or an employee who has recently been dismissed and believes the process was unfair, obtaining legal advice early can help you understand your rights, obligations and available options.

This article is intended for general informational purposes and does not constitute legal advice. Employment matters are fact-specific, and the applicable legal position may depend on the circumstances, contract and current Kenyan law. Professional legal advice should be obtained before taking action.