Unfair Termination in Kenya: Know Your Rights as an Employee

Losing a job is stressful, especially when it happens suddenly. The Employment Act, 2007 protects employees against termination that is unfair — either because there was no valid reason, or because the employer did not follow a fair procedure.

Two tests: reason and procedure

For a termination to be fair, the employer must prove that:

1. there was a valid and fair reason related to the employee’s conduct, capacity or compatibility, or to the employer’s operational requirements; and
2. a fair procedure was followed.

What does a fair procedure look like?

Before terminating on grounds of misconduct, poor performance or physical incapacity, the employer must explain the reason to the employee in a language they understand, and give them an opportunity to respond. The employee is entitled to have a fellow employee or a shop floor union representative present during that explanation, and the employer must consider any representations made.

Redundancy has its own rules

Where jobs are lost because of redundancy, the employer must give advance notice to the employee (or their union) and the local labour officer, apply fair selection criteria, pay any leave due and pay severance at the rate of at least fifteen days’ pay for each completed year of service.

Remedies

If the Employment and Labour Relations Court finds that a termination was unfair, it may order:

• reinstatement or re-engagement; or
• compensation of up to twelve months’ gross salary; plus
• notice pay, unpaid wages, accrued leave and other terminal dues.

Act promptly

Claims are subject to time limits, generally three years for employment claims. Keep your contract, payslips, letters and messages from your employer — they are valuable evidence. You are also entitled to a certificate of service on leaving employment.

We advise both employees and employers. If you have been dismissed, or you are planning a restructure, talk to us first.