Understanding Unfair Termination Claims: What Kenyan Employees Need to Know

Losing a job can be stressful, particularly when an employee believes that the termination was unfair or that the employer did not follow the required legal process. Understanding unfair termination claims in Kenya is therefore important for employees who have been dismissed and employers who need to comply with Kenyan labour law.

Under the Employment Act, 2007, an employer should not terminate an employee unfairly. For a termination to be considered fair, the employer generally needs to establish a valid and fair reason for the termination and demonstrate that a fair procedure was followed.

An employee who believes that they have been unfairly dismissed may have several options, including raising the matter with the employer, seeking assistance from a labour officer or pursuing a claim before the Employment and Labour Relations Court.

This guide explains unfair termination in Kenya, the rights of employees, the obligations of employers and the steps an affected employee can consider after dismissal.

What Is Unfair Termination in Kenya?

Unfair termination in Kenya occurs where an employer fails to satisfy the legal requirements governing the reason for termination and the procedure followed.

Section 45 of the Employment Act provides that termination is unfair where the employer fails to prove that:

• The reason for termination was valid.
• The reason was a fair reason related to the employee’s conduct, capacity or compatibility, or based on the employer’s operational requirements.
• The employment was terminated in accordance with fair procedure.

This means that an employer may have a genuine concern about an employee but still face a claim if the required procedure was not followed.

Similarly, following a disciplinary procedure does not automatically make a termination lawful if the underlying reason is not valid or fair.

Understanding Unfair Termination Claims in Kenya

When considering understanding unfair termination claims in Kenya, it is useful to separate two important questions:

1. Was there a valid and fair reason for the termination?
2. Was a fair procedure followed before the employee was dismissed?

These are separate requirements.

For example, an employer may genuinely believe that an employee committed misconduct. However, before terminating employment on grounds of misconduct, poor performance or physical incapacity, section 41 generally requires the employer to explain the reason being considered and give the employee an opportunity to respond. The employee is also entitled to have another employee or a shop-floor union representative of their choice present during the explanation.

What Does the Law Say About Termination?

The main statutory framework is the Employment Act, 2007, particularly sections 41, 43 and 45.

Section 43 places an obligation on the employer to prove the reason or reasons for termination in a claim arising from termination. If the employer fails to do so, the termination may be deemed unfair.

Section 45 then requires the employer to establish that the reason was valid and fair and that the termination followed a fair procedure. Kenyan courts have repeatedly considered both the substantive reason for termination and procedural fairness when determining unfair termination disputes.

What Is a Fair Termination Procedure?

An employer should generally follow a fair disciplinary process where termination is based on misconduct, poor performance or incapacity.

1. The Employee Should Be Told the Reason

The employer should explain the reason for which termination is being considered in a language the employee understands.

2. The Employee Should Be Given an Opportunity to Respond

The employee should be given an opportunity to explain their side of the matter.

3. The Employee May Have Representation

Under section 41, the employee may have another employee or a shop-floor union representative of their choice present during the explanation.

4. The Employer Should Consider the Employee’s Response

The employer should hear and consider the employee’s representations before making the final decision.

A dismissal that ignores these procedural safeguards may give rise to an argument that the termination was procedurally unfair.

What Are Valid Reasons for Termination?

A termination may be based on matters relating to an employee’s:

• Conduct
• Capacity
• Compatibility

Termination may also be based on the operational requirements of the employer, subject to the legal requirements applicable to that type of termination.

For example, misconduct may justify disciplinary action where properly established. Poor performance may also justify termination where the employer can demonstrate the relevant performance concerns and follows an appropriate process.

However, the employer should be able to demonstrate the reason relied upon at the time of termination.

What Is Summary Dismissal?

Summary dismissal is termination without notice or with less notice than the employee would ordinarily be entitled to.

Section 44 of the Employment Act allows summary dismissal in circumstances where an employee has fundamentally breached obligations arising from the employment contract. The Act gives examples of conduct that may amount to gross misconduct, including certain cases of unauthorised absence, intoxication affecting work, wilful neglect of duty, abusive conduct and refusal to obey a lawful and proper command.

However, summary dismissal does not mean that every procedural protection disappears. Where section 41 applies, the employee should generally still be given an opportunity to respond to the allegations before dismissal.

What Reasons Are Not Fair Grounds for Dismissal?

Kenyan employment law protects employees from termination for certain prohibited reasons.

Section 46 identifies circumstances that do not constitute fair reasons for dismissal or disciplinary action. These include matters such as pregnancy, taking lawful leave, trade union membership or lawful trade union activities, and participation in a lawful strike.

The section also identifies discrimination-related grounds, including race, sex, religion, political opinion or affiliation, nationality, marital status, HIV status and disability.

An employee who believes that dismissal was connected to a prohibited reason should seek legal advice promptly.

What Should an Employee Do After Unfair Termination?

Understanding Unfair Termination Claims also involves knowing what evidence may be important after dismissal. Employees should keep their employment contract, termination letter, payslips, disciplinary notices, emails and other records relating to the employment dispute.

1. Obtain the Termination Letter

Keep the termination or dismissal letter and any documents stating the reason for termination.

If you were dismissed verbally, document what happened, including the date, people involved and circumstances surrounding the dismissal.

2. Keep Your Employment Records

Useful documents may include:

• Employment contract
• Payslips
• Termination or dismissal letter
• Warning letters
• Performance reviews
• Emails and correspondence
• Disciplinary notices
• Minutes or notes from disciplinary hearings
• Leave records
• Relevant workplace policies
• Any appeal or grievance correspondence

3. Record What Happened

Write down the events leading to termination while they are still fresh in your memory.

Include dates, meetings, instructions received, allegations made against you and the responses you provided.

4. Check Whether a Disciplinary Hearing Was Conducted

If the dismissal was based on misconduct, poor performance or incapacity, consider whether you were informed of the allegations and given a reasonable opportunity to respond.

5. Seek Professional Legal Advice

Employment disputes can involve contractual rights, statutory obligations and evidence that may be difficult to assess without professional assistance.

An employment lawyer can review the circumstances of the termination and advise on the available options.

Can an Employee Report Unfair Termination to a Labour Officer?

Yes. Section 47 of the Employment Act provides a mechanism for an employee who has been summarily dismissed or unfairly terminated to present a complaint to a labour officer.

The Act provides that such a complaint may be presented within three months of the date of dismissal. The labour officer may hear the parties and recommend an appropriate means of resolving the dispute.

Employees should therefore avoid unnecessarily delaying action after termination.

Can an Employee Sue for Unfair Termination?

An employee may also pursue a claim before the Employment and Labour Relations Court, depending on the circumstances of the dispute.

The limitation period is important. Section 90 of the Employment Act generally requires civil proceedings arising from the Employment Act or a contract of service to be commenced within three years from the act, neglect or default complained of. For continuing injury or damage, the law provides a different limitation period running from cessation of the injury or damage. Recent court decisions continue to apply these statutory limitation periods.

Because limitation rules can determine whether a claim can proceed, an employee should seek legal advice as soon as possible rather than waiting until the deadline approaches.

What Compensation Can an Employee Receive for Unfair Termination?

Where unfair termination is established, the available remedies depend on the circumstances of the case.

Section 49 of the Employment Act provides for remedies that may include:

• Notice pay where applicable
• Compensation of up to twelve months’ gross wages or salary
• Reinstatement in appropriate circumstances
• Re-engagement in suitable work
• Other amounts or losses that may be legally recoverable

The law also requires relevant factors to be considered when determining appropriate remedies, including the employee’s length of service, circumstances of termination, opportunities for comparable employment and the employee’s contribution to the circumstances leading to termination.

Importantly, compensation is not automatically twelve months’ salary in every case. The appropriate remedy depends on the facts and circumstances.

Is Every Termination Unfair?

No.

An employee losing their job does not automatically mean that the termination was unlawful or unfair.

An employer may lawfully terminate employment where there is a valid and fair reason and the applicable legal procedure is followed.

For example, termination may arise from genuine misconduct, incapacity, poor performance or operational requirements, depending on the circumstances and applicable legal requirements.

The question in an unfair termination claim is therefore not simply whether the employee lost their job. The circumstances, reason and procedure must be examined.

Unfair Termination vs Wrongful Dismissal

The terms unfair termination and wrongful dismissal are related but can involve different legal issues.

Unfair termination generally focuses on whether the employer had a valid and fair reason and followed a fair procedure.

Wrongful dismissal may involve a breach of the employment contract or statutory notice requirements.

An employee may have more than one potential claim arising from the same termination, depending on the facts.

What Evidence Is Important in an Unfair Termination Claim?

Evidence can be critical when establishing what happened.

Employees should preserve:

• Employment contracts
• Termination letters
• Disciplinary notices
• Emails
• WhatsApp or other relevant workplace communications
• Performance records
• Payslips
• Warning letters
• Witness information
• Workplace policies
• Documents relating to appeals or grievances

Employees should avoid deleting relevant communications or altering documents after a dispute has arisen.

Employers should similarly maintain proper employment records and documentation showing the reasons and procedure relied upon.

What Should Employers Do to Avoid Unfair Termination Claims?

Employers can reduce employment disputes by ensuring that disciplinary and termination processes comply with Kenyan employment law.

This includes:

• Having clear employment contracts and workplace policies
• Documenting performance and disciplinary concerns
• Communicating allegations clearly
• Giving employees an opportunity to respond
• Following the applicable disciplinary procedure
• Keeping records of hearings and decisions
• Ensuring termination decisions are based on lawful grounds
• Avoiding discriminatory or prohibited reasons for termination
• Providing required employment documents after termination

Proper documentation can also help an employer demonstrate that the termination was based on a genuine and lawful reason.

What to Do If You Believe You Were Unfairly Dismissed

If you have been dismissed and believe the termination was unfair, do not ignore the matter.

Start by collecting your employment documents and recording the circumstances surrounding your dismissal. Review the reason given by the employer and consider whether the required disciplinary or termination process was followed.

Because employment claims are subject to statutory time limits, obtaining legal advice promptly can help you understand your options.

How Mursal Hajj & Company Advocates Can Help

At Mursal Hajj & Company Advocates, employment disputes can require careful review of the employment contract, disciplinary records, termination letter, communications and circumstances leading to dismissal.

Legal assistance may include:

• Reviewing an unfair termination or wrongful dismissal claim
• Advising employees on their employment rights
• Reviewing termination and disciplinary procedures
• Advising employers on employment law compliance
• Assisting with employment disputes and negotiations
• Advising on potential remedies and compensation
• Representing clients in employment-related proceedings where appropriate

For employment matters, early legal advice can help preserve important evidence and ensure that available legal options are properly considered.

Frequently Asked Questions About Unfair Termination in Kenya

What is unfair termination in Kenya?

Unfair termination occurs where an employer fails to establish a valid and fair reason for termination or fails to follow a fair procedure as required by Kenyan employment law. Section 45 of the Employment Act addresses the requirements for fair termination.

How long do I have to complain about unfair termination?

Under section 47(1) of the Employment Act, an employee may present a complaint to a labour officer within three months of the date of dismissal. Court proceedings are subject to the limitation provisions under section 90, which generally provide a three-year period for claims arising under the Employment Act or a contract of service.

Can I be dismissed without a warning?

A warning is not necessarily required in every employment situation. Whether warnings were appropriate depends on the circumstances, the reason for termination, the employment contract, workplace policies and the nature of the alleged misconduct or performance issue.

Can an employer dismiss an employee for misconduct?

Yes, misconduct may constitute a lawful basis for disciplinary action and, in appropriate circumstances, dismissal. However, the employer must still satisfy the applicable requirements concerning the reason for termination and fair procedure.

Can I claim compensation after unfair termination?

Potentially. Section 49 provides several possible remedies, including compensation of up to twelve months’ gross wages or salary, depending on the circumstances. The actual remedy depends on the facts of the case.

Can I be reinstated after unfair termination?

Reinstatement is one of the remedies that may be available in appropriate circumstances. It is not automatic and depends on factors considered under the law.

What if I was dismissed while on probation?

The Employment Act contains specific provisions concerning probationary contracts. Section 42 provides that section 41 does not apply to termination of a probationary contract, and sets out specific rules concerning probationary periods and notice.

Because probationary employment can involve different legal considerations, employees and employers should obtain advice based on the specific contract and circumstances.

What if my employer says I resigned?

Where there is a dispute about whether an employee resigned or was dismissed, the circumstances and available evidence become important. Emails, messages, letters, witness evidence and employment records may help establish what actually happened.

Understanding Unfair Termination Claims can help employees identify whether the reason for dismissal was valid, whether a fair procedure was followed and what legal options may be available after termination.

Conclusion

Understanding unfair termination claims in Kenya is important for both employees and employers.

A lawful termination generally requires more than simply having a reason to dismiss an employee. The employer must be able to establish a valid and fair reason and, where applicable, follow a fair procedure.

Employees who believe they have been unfairly dismissed should preserve their employment records, understand the reason given for termination and seek professional advice without unnecessary delay.

For employers, proper documentation, fair disciplinary procedures and compliance with the Employment Act can help reduce the risk of costly employment disputes.

Where an employment dispute arises, obtaining advice from an experienced employment law advocate in Kenya can help determine the appropriate legal steps based on the facts of the individual case.