Unfair Termination of Employment in Kenya: What Employees Should Know

Losing a job can be difficult, particularly where an employee believes that the termination was unexpected, unjustified or carried out without following the proper procedure.

In Kenya, an employer generally has the right to terminate an employment relationship in circumstances permitted by law. However, that right is not unlimited. The law places requirements on employers regarding both the reason for termination and the procedure followed before an employee's employment is brought to an end.

For employees, understanding these protections is important. For employers, understanding them is equally important because failure to follow the law can expose a business to claims and financial liability.

This article discusses some of the key issues surrounding termination of employment in Kenya and what an employee should consider when faced with termination.

What Is Unfair Termination?

Termination is not automatically unfair simply because an employee has lost their job.

The circumstances surrounding the termination matter. Kenyan employment law generally requires an employer to have a valid and fair reason for terminating an employee and to follow a fair procedure.

This means that an employer should be able to explain why the employment relationship was terminated and should have followed the appropriate process in reaching that decision.

For example, if an employee is dismissed for alleged misconduct, the employer should not simply terminate the employee without giving them an appropriate opportunity to respond to the allegations. Similarly, where an employee's position is being eliminated because of redundancy, the employer must comply with the legal requirements governing redundancy.

The question in an employment dispute is therefore not merely, "Was the employee dismissed?" It is also "Why was the employee dismissed, and how was the decision made?"

The Employer Should Have a Valid Reason

One of the fundamental considerations in an employment dispute is the reason given for termination.

An employer should be able to demonstrate that the reason relied upon for terminating the employment was genuine and legally permissible.

Consider an employee who is told that their employment has been terminated because of poor performance. If the employer has never raised concerns about the employee's performance, never provided an opportunity to improve and cannot demonstrate the basis for the allegation, the employee may have grounds to question whether the stated reason was genuine or fair.

The same applies where an employee is accused of misconduct.

An allegation made against an employee should not automatically be treated as proof of wrongdoing. The circumstances should be investigated, and the employee should be given a fair opportunity to respond before an adverse decision is made.

The substance of the reason for termination therefore matters.

A Fair Reason Is Not Enough: Procedure Also Matters

An employer may have a legitimate concern about an employee's conduct or performance, but that does not necessarily mean the employer can immediately terminate the employee.

The procedure followed is an important part of the employment relationship.

Where an employee is facing disciplinary action, the employee should generally be informed of the allegations or concerns being raised and given an opportunity to respond before a decision is made.

This is important because disciplinary proceedings are not simply about informing an employee that a decision has already been made. They should provide the employee with a meaningful opportunity to explain their position.

For example, an employee accused of misconduct may have an explanation, documents, witnesses or other information that could affect the employer's assessment of the situation.

Giving the employee an opportunity to be heard helps ensure that the final decision is based on a fair consideration of the circumstances.

Notice Before Termination

The issue of notice is another important aspect of employment termination.

Depending on the terms of the employment contract and the applicable law, an employee may be entitled to notice before termination or payment in lieu of notice.

The length of notice may depend on factors such as the employee's contract and the applicable statutory requirements.

An employee should therefore carefully review their employment contract when their employment is terminated. The contract may contain provisions dealing with notice, termination, disciplinary processes and other relevant matters.

However, payment of notice does not necessarily resolve every issue relating to fairness. An employee may still have questions about the reason for termination or whether the required procedure was followed.

What About Summary Dismissal?

There are circumstances in which an employer may lawfully terminate employment without giving ordinary notice.

This is commonly referred to as summary dismissal and may arise where an employee commits conduct that amounts to a fundamental breach of the employment relationship.

However, the existence of a potentially serious allegation does not mean that an employer should abandon procedural fairness.

Where an employer intends to take disciplinary action against an employee, the circumstances surrounding the allegation should be properly considered and the employee should ordinarily be given an opportunity to respond in accordance with the applicable legal requirements.

This distinction is important because employers sometimes assume that a serious allegation automatically gives them unrestricted power to dismiss an employee immediately.

It does not.

What Should an Employee Do After Receiving a Termination Letter?

The first reaction to termination may be emotional, but it is important for an employee to preserve relevant information and understand exactly what has happened.

The employee should keep copies of the employment contract, termination letter, disciplinary notices, warning letters, emails, payslips and other documents relating to the employment relationship.

Where disciplinary proceedings took place, the employee should also retain any documents provided during the process.

It is equally important to pay attention to the dates involved. Employment disputes are subject to legal timelines, and delaying action may affect an employee's ability to pursue a claim.

An employee should therefore consider obtaining legal advice promptly rather than waiting until significant time has passed.

Can an Employee Challenge an Unfair Termination?

An employee who believes that their employment was unlawfully or unfairly terminated may have legal avenues available to them.

The appropriate approach will depend on the circumstances of the employment relationship, the reason for termination, the procedure followed and the remedies being sought.

Some employment disputes may be capable of resolution through internal processes, negotiation or other forms of alternative dispute resolution. In other circumstances, formal proceedings may become necessary.

The important point is that an employee should not assume that receiving a termination letter automatically ends every possible legal avenue.

At the same time, not every termination is unlawful simply because the employee disagrees with the decision. The facts and applicable law must be carefully examined.

What Compensation Can an Employee Receive?

Where an employee successfully establishes an employment claim, the available remedies will depend on the circumstances and the applicable law.

Potential remedies can include monetary compensation and, in appropriate cases, other forms of relief.

The amount of compensation is not necessarily the same in every case. Relevant factors may include the circumstances surrounding the termination, the employee's length of service, the conduct of the parties and other matters considered by the relevant decision-making body or court.

This is one reason why employees should avoid assuming that there is an automatic fixed amount payable whenever employment is terminated unfairly.

The facts of each case matter.

Employers Also Have Legal Responsibilities

Employment law is not solely about protecting employees. It also provides a framework within which employers can manage their businesses and workforce.

An employer facing genuine performance problems, misconduct, redundancy or other legitimate employment concerns should not be prevented from taking appropriate action.

The important consideration is that the employer should act within the law and follow the applicable contractual and statutory procedures.

Businesses can reduce employment disputes by having clear employment contracts, workplace policies and disciplinary procedures and by ensuring that managers understand how those procedures should be applied.

Proper documentation is also important. Where an employment dispute eventually arises, the employer may need to demonstrate the steps it took and the basis upon which the decision was made.

Common Mistakes Employees Make

Employees sometimes make avoidable mistakes after termination.

One common mistake is signing documents without first understanding what they contain. A document described as an acknowledgement, settlement, resignation or clearance form may have legal consequences.

Another mistake is deleting emails or messages that may be relevant to the dispute.

Employees may also wait too long before seeking legal advice because they hope the employer will reverse the decision or because they are uncertain about their rights.

Seeking advice early can help an employee understand their position and determine what steps, if any, should be taken.

Common Mistakes Employers Make

Employers can also expose themselves to unnecessary legal risk through poor employment practices.

For example, an employer may have a legitimate reason for disciplining an employee but fail to follow the required procedure. Alternatively, an employer may issue inconsistent disciplinary decisions to employees facing similar circumstances.

Poor documentation can create additional difficulties when an employer later has to explain how and why a termination decision was made.

Employers should therefore view compliance with employment law not merely as a defensive measure, but as part of sound human-resource management.

Conclusion

Termination of employment can have significant consequences for both employees and employers. For an employee, losing a source of income can affect their family, financial commitments and future career. For an employer, an improperly handled termination can lead to disputes, financial exposure and reputational consequences.

The central lesson is that both the reason for termination and the procedure followed matter.

An employee who believes they have been unfairly terminated should obtain appropriate legal advice and have the circumstances reviewed carefully. Similarly, employers should seek legal guidance where they are dealing with complex disciplinary, performance, redundancy or termination issues.

At G.K. Kimani & Associates Advocates, we advise on employment and labour matters with the aim of helping clients understand their legal position and make informed decisions.

Whether you are an employee seeking to understand your rights or an employer seeking to manage an employment matter lawfully, obtaining legal advice at an early stage can help prevent a difficult situation from becoming a more serious dispute.

This article is provided for general informational purposes and does not constitute legal advice. Employment disputes are fact-specific, and the applicable law and available remedies depend on the circumstances of each case. Professional legal advice should be obtained before taking action.