The employment laws in Kenya shield employees against mistreatment from their employers.
One matter that affects the workforce is wrongful termination in Kenya. That occurs when an employer improperly or unnecessarily fires a worker.
In this article, we will define wrongful dismissal in Kenya, the legal principles that accompany it, what employees do in such a situation, and how employees can seek redress, including suing a company.
What is wrongful dismissal in Kenya?
Usually, unfair dismissal refers to situations where an employee is dismissed for an unjust reason, but also includes the rights of employees dismissed in breach of an employment contract.
It is also known as unfair or wrongful dismissal of employment. ‘Services of Offer of Employment’.
Termination of employment is regulated by a single law entitled ‘The Employment Act, 2007’ of Kenya, and employers have to follow specific steps to terminate a contract lawfully. If they do not, then the dismissal is unlawful.
What is Wrongful Termination of Employment?
A wrongful termination of employment occurs when an employer terminates an employee for unacceptable reasons or without following proper procedures.
The Employment Act provides that a fair dismissal has to be substantively fair (based on a valid reason and fair procedure) and procedurally fair (follow due process).
Without either, your termination is unfair and falls under wrongful dismissal in Kenya.
For example, an employer cannot dismiss an employee based on gender, religion, race, pregnancy or trade union membership.
These are unfair reasons under the Kenyan labour laws. Similarly, if an employer fails to issue notice or provide a fair hearing before terminating the employment, it’s an unlawful termination in Kenya.
Examples of Wrongful Dismissal
The following are some typical scenarios in which there may be an unfair dismissal in Kenya:
Dismissal without good cause
A contract is considered a wrongful termination if the employer does not have evidence of misconduct and poor added value to justify the contract’s non-renewal.
No notice or inadequate notice
The Employment Act requires employers to provide notice (usually 28 days for monthly-paid workers) or to pay instead of notice. Failure to have done so renders the dismissal unlawful.
Discrimination
Employers cannot fire an employee based on race, gender, religion, or other discriminatory factors.
Retaliation
Terminating an employee for reporting workplace problems, unionizing or taking protected leave, such as maternity leave, is considered unjust termination.
Failure to observe due process
The dismissal is unfair when the employer fails to conduct a fair and reasonable hearing or allow the employee to defend themselves against the charges.
Is Wrongful Termination Illegal?
Yes, under the Employment Act of 2007, it is illegal for an employer to terminate an employee without a valid reason in Kenya.
The legislation states that employers must have a valid reason for termination of employment and follow a fair process.
Where an employer fails to do so, such a discharge is regarded as unfair termination in Kenya. Wrongfully fired workers can obtain legal assistance to contest their termination and be awarded remedies, such as payment or reinstatement.
The Process of Dismissing an Employee in Kenya
Wrongful dismissal in Kenya can be prevented if the employer follows the proper termination of employment process as stipulated by the Employment Act. Keys to preventing wrongful dismissal in Kenya. Here are the key steps:
Good Reason
The employer must have a reason that is easy to understand and explains why they want to dismiss the employee. Acceptable reasons include:
- Serious breach of the employment contract (theft, fraud, intoxicated while at work).
- Low performance, but you only gave the employee one chance to improve.
- Redundancy occurs when the job is no longer required, but this is subject to specific processes.
- Inability is when an employee cannot do their job, following a medical examination.
Notice Period
Employers MUST provide written notice of termination of employment. For monthly paid employees, the notice is generally 28 days. Or, the employer can pay the employee their salary for the notice period and send them home so they don’t have to work.
Fair Hearing
The employer must have a disciplinary hearing if the dismissal or termination is for misconduct or poor work performance. The worker deserves an opportunity to defend themselves and share their perspective.
Written reasons
An employer must give an employee a written statement of the reasons for termination of their employment if the employer dismisses the employee for misconduct or poor performance.
Employees should be allowed to appeal if they disagree with the determination.
Certificate of Service
Employees must be provided, upon termination, with confirmation of their employment history, except when the termination is due to gross misconduct (this is mandatory).
If any of these stages are bypassed, termination may be viewed as dismissal from work. If they have not held a hearing, or given me a hearing or notice of what you may have done, and they want you to leave, that’s unfair termination of employment, which a court or labour officer will rule against them for.
Termination During Probation Period
There are some differences when it comes to the employment probation period. In Kenya, a probation period is typically six months, during which an employer can evaluate the employee to determine their suitability for the work at hand.
However, wrongful termination in Kenya is also possible during probation if the employer breaches the law.
Under the Employment Act, employers may dismiss an employee on probation with a shorter notice (usually 7 days).
However, the employer must still have a legitimate reason and act fairly. For instance, if an employee is terminated during a probationary period due to discrimination or without an opportunity to explain their performance, it could be a wrongful termination contract. Workers under these circumstances may still look for legal assistance.
Can I Sue My Employer for Wrongful Termination?
Yes, it is possible to sue a company for wrongful dismissal in Kenya. If you think your firing was unfair or illegal, you can try the following:
Lodging a Complaint to a Labour Officer: You must use the labour officer at the Director of Occupational Safety and Health Services.
The officer will investigate and may order remedies, including compensation or reinstatement.
Approach the Employment and Labour Relations Court
If you are dissatisfied with the labour officer’s judgment or would rather give your opinion, you can apply to the Employment and Labour Relations Court. This court adjudicates unfair termination of employment and wrongful dismissal in Kenya.
Engage a Termination of Employment Lawyer
When terminated from employment, a termination of employment lawyer can help you prepare a case you can be confident in. They will walk you through the legal process, collect evidence and argue your case in court. And when you do, search for a lawyer experienced in Kenyan labour laws to ensure you get the best results.
Collect Evidence
- To establish wrongful termination, you will want the following evidence:
- Your employment contract.
- An employer’s email or letter notifying the applicant of termination of employment.
- Records of warnings, hearings, or reviews of performance.
- Evidence of discrimination in the workplace or unfair treatment, such as emails or witness statements.
Remedies for Wrongful Dismissal
Where the dismissal is found to be unfair by a court or labour officer, any of the following remedies may be granted:
- Compensation: as much as the equivalent of 12 months’ salary is offered to the employee, depending on the case (Article 12(3) SSL).
- Reinstatement: The court can order the employer to return the job to the employee with the same or better pay
- Notice Pay: If the employer does not provide notice, then it will have to pay the employee their due for the notice.
- Termination Indemnity: Employees are typically entitled to 15 days’ pay per year of service for redundancies.
- Damages: In some instances, employees can recover additional payments for emotional distress or infringement of their rights.
- Service Pay: If the employer did not contribute to a pension fund, the amount of such a contribution can be turned into service pay.
How to Prevent Wrongful Termination (for Employers)
What steps can be taken to prevent wrongful termination of employment in Kenya perpetrated by either the employee or the employer?
- Have Specific Contracts: Ensure the employment contracts have clear terms of termination of employment, including notice periods and grounds on which to terminate.
- Apply Due Process: Always give written notice, conduct a fair hearing and let the employee appeal.
- Document Everything: Holding on to performance reviews, warnings, and disciplinary hearings proves the firing was justified.
- No Discrimination: You should not be firing people based on protected factors such as gender, religion or union membership.
- Get Legal Guidance: Speak with a termination of employment lawyer for advice on labour laws in Kenya.
Employers who take these steps can lessen the likelihood of being sued for wrongful termination of employment.
Constructive Dismissal
Constructive dismissal in Kenya. Another type of unjust termination in Kenya is constructive dismissal. For example, when an employer makes the workplace so miserable that an employee feels forced to quit. Examples include:
- To dock the salary of an employee without his consent.
- Harassment or retaliation against the employee.
- Giving nonconsensual job duties with a significant change in responsibilities.
The employee in those cases can argue that they were unfairly dismissed through constructive dismissal, because the resignation was not voluntary.
The burden of proof is on the employee to demonstrate that the employer’s conduct has been such that the employment contract is breached and the employee has no option but to resign.
Current Kenya Labour Laws
Kenya’s labour law has changed over time to ensure better worker protection. The Employment Act of 2007, until 2025, is the main law regulating employment termination in Kenya.
Courts have highlighted procedural fairness during recent actions. Employers must also inform the National Employment Authority of a termination within two weeks, particularly in cases of redundancy. This will ensure transparency and adherence to the law.
What Employees Can Do if They Are Unfairly Fired
If you find yourself in a situation of wrongful termination in Kenya, follow these action points:
- Report To A Labour Officer: Take the issue to the nearby labour office.
- Get Advice from a Lawyer: A termination of employment lawyer can tell you your rights and assist with filing a court case.
- Time is of the Essence: You must submit a claim within a statutorily-prescribed period, generally not to exceed three years, or you may lose your right to pursue remedies.
- Document Everything: You’ll want to save any email, contract, or other paperwork related to your termination of employment.
Conclusion
Laws on wrongful dismissal in Kenya can be complicated for many employees. According to Kaya Tuncer, founder of HR consultancy Claritum Consultancy, it occurs when an employer terminates it without any valid reason and/or fails to follow due process.
Kenya’s labour laws, especially the Employment Act of 2007, shield employees when it comes to wrongful employee termination and wrongful dismissal in Kenya.
In case of wrongful dismissal in Kenya, you can sue the company or employer and demand remedies, for instance, compensation or reinstatement. Employers must follow proper procedures to avoid penalties, and employees should understand their rights to safeguard themselves.
