What Makes a Termination Unfair or Unlawful in Kenya?
A termination is deemed to be unfair or unlawful if the employer fails to prove the reasons for termination are valid and that the termination process was in line with statutory requirements. The burden of proof in a dismissal dispute rests squarely on the employer.
What the Law Says: Section 45 of the Employment Act
Section 45 of the Employment Act sets out when a termination will be treated as unfair — namely, where the employer:
- Cannot show that the termination was based on a fair reason connected to the employee’s conduct, capacity, or compatibility;
- Cannot show that the termination was justified by the employer’s operational requirements; or
- Cannot show that the employment was ended through a fair procedure, in keeping with the principles of equity and justice.
What the Courts Look At
When determining whether an employer’s decision to terminate an employee was just and equitable, the Court will typically weigh:
- The procedure the employer followed in reaching the decision to dismiss, how that decision was communicated to the employee, and how any appeal was handled;
- The employee’s conduct and capability up to the point of termination;
- How well the employer complied with relevant statutory requirements tied to the termination — including issuing a certificate under section 51 and following the procedural steps set out in section 41;
- How the employer has handled similar situations in the past; and
- Whether the employee had received any previous warning letters.
Reasons That Do Not Justify Dismissal
Section 46 of the Employment Act lists a number of reasons that will never amount to a fair basis for dismissal or disciplinary action. These include:
- An employee’s pregnancy, or any reason connected to it;
- An employee taking, or proposing to take, leave;
- An employee’s membership, or proposed membership, in a trade union;
- An employee seeking office as — or acting or having acted as — a trade union official or workers’ representative;
- An employee’s refusal, or proposed refusal, to join or withdraw from a trade union;
- An employee’s race, colour, tribe, sex, religion, political opinion or affiliation, national extraction, nationality, social origin, marital status, HIV status, or disability;
- An employee initiating, or proposing to initiate, a complaint or other legal proceedings against their employer — except where that complaint is shown to be irresponsible and without foundation; and
- An employee’s participation in a lawful strike.
Know Where You Stand
Whether you’re an employer navigating a difficult dismissal decision, or an employee who believes you were let go unfairly, understanding your rights and obligations under the Employment Act matters. Talk to us to help you understand where you stand.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. For guidance on your specific employment matter, please consult Mwaura Benedict Njuguna and Company Advocates.