Unfair and Wrongful Termination in Kenya: Employee Rights and Employer Obligations

Unfair Termination in Kenya | Employee Rights & Employer Obligations, unfair and wrongful termination in Kenya, employee rights, employer obligations, disciplinary procedures, compensation and legal remedies. WKA Advocates advises employers and employees on termination disputes.

Termination of employment can be difficult for an employee and legally sensitive for an employer.

In Kenya, employers may terminate employment relationships in appropriate circumstances. However, the termination must comply with applicable employment law, contractual obligations and procedural requirements.

Consequently, an employer who dismisses an employee without an appropriate reason or fails to follow the required procedure may face an unfair termination claim.

Likewise, employees who believe they have been unfairly dismissed should understand their rights before signing settlement documents, accepting proposed terms or taking further action.

At WKA Advocates, we advise and represent employees, employers, executives, businesses and organisations in matters involving unfair termination, wrongful dismissal, disciplinary proceedings, redundancy, employment disputes and settlement negotiations in Kenya.

What Is Unfair Termination in Kenya?

Kenyan employment law provides employees with protection against unfair termination.

Broadly, an employer should have an appropriate legal basis for terminating employment and should follow the procedure required by law in the circumstances.

Therefore, termination may raise legal concerns where:

The employer cannot demonstrate an appropriate reason for termination;
The employee does not receive an appropriate opportunity to respond to allegations;
The employer fails to follow the required disciplinary procedure;
Contractual termination requirements are not followed;
Applicable employment policies are ignored; or
Other statutory requirements are not satisfied.

However, every employment dispute depends on its particular circumstances.

Whether termination was lawful may depend on the employee’s contract, the reason given, available evidence, procedure followed, workplace policies and communications between the parties.

What Is Wrongful Termination?

The expressions unfair termination and wrongful termination are sometimes used interchangeably. However, termination disputes can involve different legal issues.

For example, some disputes focus on whether the employer had a valid and fair reason and followed a fair procedure.

Others may involve alleged breaches of contractual obligations, including notice provisions or agreed employment benefits.

Therefore, identifying the exact legal issue is important before deciding how to pursue or defend a termination claim.

At WKA Advocates, we review the employment contract, termination documentation and surrounding circumstances before advising on the appropriate legal position.

What Can Make a Termination Unfair?

Several circumstances may lead an employee to question whether termination was fair.

For example, concerns may arise where:

No clear reason for termination was provided;
The allegations were not properly communicated;
The employee did not receive an appropriate opportunity to respond;
A disciplinary process was required but not properly followed;
The employer cannot support the allegations with appropriate evidence;
Contractual procedures were ignored; or
The termination otherwise failed to comply with applicable employment law.

Nevertheless, the existence of one concern does not automatically determine the outcome of a dispute.

The entire employment relationship and termination process should be reviewed.

Valid Reasons and Fair Procedure

Termination disputes commonly involve two important questions.

First, was there a legally supportable reason for termination?

Second, was the appropriate procedure followed?

Employers should consider both questions before making a final decision.

For instance, allegations involving misconduct, poor performance or incapacity may require an appropriate process before termination.

As a result, employers should avoid making termination decisions first and attempting to justify the procedure afterwards.

Early legal advice can help an employer structure the process correctly from the beginning.

Employee Rights During a Termination Process

Employees facing termination should understand their position before making important decisions.

Depending on the circumstances, relevant rights or entitlements may concern:

Appropriate notice or payment in lieu of notice;
Salary already earned;
Contractual benefits;
Accrued entitlements;
Appropriate disciplinary procedures;
An opportunity to respond to allegations;
Separation documentation;
Certificate of service; and
The ability to challenge a disputed termination through appropriate legal procedures.

However, the precise rights available depend on the employee’s contract, applicable legislation and circumstances surrounding the termination.

Therefore, employees should obtain advice tailored to their particular case.

Have You Received a Show-Cause Letter?

Receiving a show-cause letter does not necessarily mean that employment has already been terminated.

Instead, it may form part of a disciplinary process in which the employer asks the employee to respond to particular allegations or concerns.

Employees should take such correspondence seriously.

Before responding, consider:

What allegations have been made;
What evidence may be relevant;
What the employment contract provides;
What workplace policies apply;
Whether previous correspondence is important; and
How the response may affect subsequent disciplinary proceedings.

A carefully prepared response can help ensure that the employee’s position is clearly documented.

Disciplinary Hearings and Employee Rights

A disciplinary hearing may form part of the process before an employer makes a termination decision.

Employees should understand the allegations and have an appropriate opportunity to respond in circumstances where the applicable law requires such a process.

Employers, meanwhile, should ensure that disciplinary proceedings are handled carefully and appropriately documented.

Relevant records may include:

Show-cause letters;
Employee responses;
Hearing notices;
Investigation documents;
Evidence considered;
Meeting records;
Workplace policies; and
Final disciplinary decisions.

These documents can become important if the dispute later proceeds to negotiation, mediation or litigation.

Employer Obligations When Terminating Employment

Employers should approach termination carefully.

Poorly managed disciplinary and termination processes may expose a business to legal claims, financial liability, management disruption and reputational concerns.

Before terminating employment, an employer should consider:

The reason for the proposed termination;
Evidence supporting the decision;
Employment contract;
Applicable HR policies;
Required disciplinary procedure;
Notice requirements;
Employee’s response;
Applicable collective agreements, where relevant;
Employee entitlements; and
Appropriate documentation.

Therefore, legal advice before issuing a termination letter can help identify potential risks early.

Unfair Termination for Misconduct

Misconduct allegations can result in disciplinary proceedings and, depending on their seriousness, potential termination.

However, an employer should first establish the relevant facts.

For example, misconduct allegations may concern:

Absenteeism;
Insubordination;
Fraud;
Harassment;
Breach of confidentiality;
Breach of workplace policies;
Dishonesty; or
Other workplace misconduct.

Depending on the circumstances, the employer may need to investigate the allegations and give the employee an appropriate opportunity to respond before reaching a decision.

Unfair Termination for Poor Performance

Poor performance is another area that requires careful management.

Employers should avoid relying solely on vague statements that an employee is underperforming.

Instead, relevant considerations may include:

Job responsibilities;
Performance expectations;
Performance assessments;
Communication with the employee;
Previous warnings or concerns;
Employee explanations; and
Applicable procedures.

Clear documentation can therefore become particularly important in performance-related termination disputes.

Summary Dismissal

Serious misconduct may lead an employer to consider summary dismissal.

However, employers should not assume that describing conduct as serious automatically eliminates every procedural consideration.

The circumstances, evidence and applicable statutory requirements should still be examined carefully.

Consequently, employers considering summary dismissal should obtain legal advice before issuing the final decision where the circumstances are complex or disputed.

Wrongful Termination and Breach of Employment Contract

Some termination disputes may involve alleged breaches of the employment contract.

Employment contracts commonly address matters such as:

Notice periods;
Salary;
Benefits;
Confidentiality;
Duties;
Disciplinary procedures; and
Termination.

Where a party fails to comply with applicable contractual obligations, a dispute may arise.

For example, questions may concern notice, unpaid contractual benefits or whether the employer followed agreed procedures.

WKA Advocates can review employment contracts and termination documentation to identify the relevant contractual and statutory issues.

Redundancy and Unfair Termination

Redundancy differs from ordinary termination and requires particular legal attention.

Businesses may legitimately restructure because of:

Financial circumstances;
Operational requirements;
Technological changes;
Organisational restructuring;
Closure of departments; or
Other genuine business considerations.

However, employers should follow the legal requirements applicable to redundancy.

A redundancy exercise that fails to comply with those requirements may lead to an employment dispute.

At WKA Advocates, we assist employers with planning and implementing redundancy processes. We also advise employees who believe their redundancy was not handled in accordance with applicable law.

Employee Entitlements After Termination

When employment ends, an employee may have outstanding entitlements depending on the circumstances.

These may include:

Salary already earned;
Notice pay where applicable;
Accrued contractual benefits;
Leave-related entitlements where applicable;
Other amounts due under the employment agreement; and
Relevant separation documentation.

However, employers and employees should avoid relying on a standard calculation for every termination.

The correct position depends on the contract, nature of the termination and applicable legal requirements.

Certificate of Service

A Certificate of Service is an important employment separation document.

Employers should therefore consider certificate-of-service requirements as part of their termination and exit procedures.

Employees should also ensure that the necessary employment documentation is addressed when leaving employment.

Can an Employee Challenge Unfair Termination?

An employee who believes that employment was unfairly terminated may have options for challenging the employer’s decision.

The appropriate approach depends on the facts.

Depending on the circumstances, options may include:

Internal dispute-resolution procedures;
Negotiation;
Mediation;
Settlement discussions;
Applicable statutory mechanisms; or
Proceedings before the Employment and Labour Relations Court.

Therefore, employees should obtain legal advice before deciding which approach best suits their circumstances.

Remedies for Unfair Termination in Kenya

Where termination is successfully challenged, the remedies available depend on the applicable law and circumstances.

Potential issues may include:

Notice-related claims;
Outstanding employment dues;
Contractual entitlements;
Compensation where legally available; and
Other appropriate remedies.

However, compensation is not automatic or identical in every unfair-termination case.

The facts of the dispute and applicable legal principles remain important.

Therefore, employees should avoid assuming that a particular amount will automatically be awarded.

Compensation for Unfair Termination

Questions about compensation for unfair termination in Kenya are common.

Nevertheless, potential compensation should be assessed on the particular facts rather than treated as a guaranteed standard amount.

Relevant circumstances may include the nature of the employment relationship, reason for termination, procedure followed and other statutory considerations.

Legal advice can help an employee understand the possible remedies while helping an employer assess potential exposure.

Resolving Employment Termination Disputes

Not every employment dispute needs to result in lengthy litigation.

Depending on the circumstances, parties may resolve disputes through:

Negotiation;
Mediation;
Settlement agreements;
Internal procedures;
Statutory dispute-resolution mechanisms; or
Court proceedings.

An early negotiated solution may sometimes reduce cost, delay and disruption.

However, where settlement is not appropriate or cannot be achieved, formal proceedings may become necessary.

Settlement Agreements in Employment Disputes

Employers and employees may sometimes agree to resolve an employment dispute through a negotiated settlement.

A settlement agreement should clearly document the terms agreed between the parties.

Depending on the dispute, it may address:

Outstanding payments;
Employment benefits;
Separation terms;
Confidentiality;
Return of company property;
Employment documentation; and
Resolution of identified claims.

Both parties should understand the legal consequences of the agreement before signing it.

Employment and Labour Relations Court

Employment disputes may fall within the jurisdiction of Kenya’s Employment and Labour Relations Court (ELRC).

Where litigation becomes necessary, proper preparation is important.

Relevant evidence may include:

Employment contract;
Payslips;
HR policies;
Correspondence;
Show-cause letters;
Employee responses;
Disciplinary records;
Termination letter;
Payroll records; and
Other relevant employment documentation.

Therefore, both employers and employees should preserve important records when a dispute arises.

Are You an Employee Who Has Been Unfairly Terminated?

If you have recently been dismissed, avoid making important decisions without understanding your legal position.

You may wish to obtain advice if you have:

Received a show-cause letter;
Been invited to a disciplinary hearing;
Been suspended;
Received a termination letter;
Been summarily dismissed;
Been declared redundant;
Been offered a settlement agreement; or
Not received employment dues you believe are outstanding.

WKA Advocates can review the employment documents and circumstances before advising on available options.

Are You an Employer Considering Termination?

Employers can reduce legal risk by reviewing the proposed termination before making the final decision.

WKA Advocates can assist with:

Employment contract review;
Workplace investigations;
Show-cause letters;
Disciplinary procedures;
Disciplinary hearings;
Performance-management issues;
Termination documentation;
Summary dismissal;
Redundancy;
Negotiated exits;
Settlement agreements; and
Defence of employment claims.

The objective is to identify legal risks early and help the organisation make informed employment decisions.

How WKA Advocates Can Help

At WKA Advocates, we advise both sides of the employment relationship.

Our employment and labour-law services include:

Reviewing unfair-termination claims;
Reviewing wrongful-termination disputes;
Advising employees on their rights and potential remedies;
Advising employers before termination decisions;
Reviewing termination and dismissal letters;
Drafting employment documentation;
Representing clients in disciplinary proceedings;
Negotiating employment settlements;
Advising on redundancy and restructuring;
Handling unpaid salary and benefit disputes;
Advising senior executives;
Employment-law compliance reviews;
Employment dispute resolution; and
Representation before the Employment and Labour Relations Court.

We assist employees, employers, executives, SMEs, NGOs, businesses and organisations with employment matters across Kenya.

Speak to an Unfair Termination Lawyer in Kenya

Employment termination disputes can have significant financial, professional and operational consequences.

Therefore, obtaining legal advice early can help both employees and employers avoid unnecessary mistakes.

If you have recently been terminated, received a termination or redundancy notice, are facing disciplinary proceedings or believe you have been unfairly dismissed, WKA Advocates can review your circumstances and advise on the available options.

Likewise, if you are an employer considering termination, disciplinary action or redundancy, our lawyers can review the proposed process before the final decision is made.

Contact WKA Advocates for professional legal advice and representation concerning unfair termination, wrongful dismissal and employment disputes in Kenya.

Unfair and Wrongful Termination in Kenya