Before You Fire an Employee: The Legal Process Kenyan Employers Must Get Right

Before You Fire an Employee: The Legal Process Kenyan Employers Must Get Right

Few decisions expose a business to legal risk as quickly as terminating an employee.

For many employers, the decision to dismiss an employee often comes after frustration has built up for months. The employee may be absent without proper explanation. They may be underperforming. They may have mishandled company property, ignored instructions, caused conflict, breached policy, or lost the employer’s trust.

By the time the employer decides to act, the feeling is usually this:

“We have had enough.”

That is where many employers make the mistake.

In Kenya, having a reason to terminate is not always enough. The employer must also show that the reason was valid, that it was connected to the employee’s conduct, capacity or the employer’s operational needs, and that a fair process was followed before the decision was made.

This is why some employers lose termination cases even where the employee may have been at fault. The problem is not always the absence of a complaint against the employee. The problem is often that the employer acted too quickly, failed to document the issue, skipped the hearing, or issued a termination letter without giving the employee a fair chance to respond.

Start With the Reason for Termination

The first question every employer should ask is:

What is the reason for the proposed termination?

The reason must be clear. It is not enough to say that the employee is “difficult,” “not serious,” “disrespectful,” or “not a good fit.” Those may be real frustrations, but they must be translated into proper employment grounds.

The employer should identify whether the issue is:

• Misconduct
• Poor performance
• Incapacity
• Redundancy
• Breach of contract
• Absconding duty
• Loss of trust and confidence

Each ground requires a different approach.

Misconduct Requires Evidence, Not Anger

For misconduct, the employer should identify the specific act complained of. Was there theft, dishonesty, lateness, insubordination, negligence, conflict, intoxication at work, breach of policy, or misuse of company property?

The employer should have evidence, not rumours.

Useful evidence may include:

• Emails
• Attendance records
• CCTV footage
• Witness statements
• Warning letters
• Inventory records
• Customer complaints
• Internal investigation reports

A termination based on misconduct should show that the employer investigated the complaint, informed the employee of the allegations, gave the employee a chance to respond, and considered the response before making a decision.

Poor Performance Must Be Handled Carefully

Poor performance is rarely proved by simply saying that the employee “was not delivering.”

The employer should be able to show:

• The employee’s role and job expectations
• The targets or performance standards set
• Appraisal records
• Warnings or performance concerns raised
• Support or guidance given to the employee
• Time allowed for improvement
• The employee’s response to the concerns raised

Where possible, the employer should place the employee on a performance improvement process before dismissal is considered.

This helps demonstrate that the employer was not acting suddenly or unfairly, but gave the employee a reasonable opportunity to improve.

Absconding Duty Should Still Be Documented

Where an employee stops reporting to work, the employer should not simply assume that the employment relationship has ended.

The safer approach is to:

• Attempt to contact the employee
• Issue a notice to show cause
• Request an explanation
• Keep records of calls, emails, letters or messages sent
• Give the employee a reasonable opportunity to respond

If the employee later claims they were sick, locked out, instructed not to report, or unable to communicate, the employer’s records will matter.

Redundancy Is Not a Shortcut to Remove Staff

For redundancy, the issue is not the employee’s fault. It is the employer’s operational need.

That means redundancy should not be used casually as a way to remove unwanted employees.

A proper redundancy process should address:

• The reason for redundancy
• The affected positions
• Notices to the employee and labour office where required
• Consultation
• Fair selection criteria
• Statutory dues
• Proper documentation

Redundancy is a structured legal process. If handled poorly, it can expose the employer to claims even where the business genuinely needed to restructure.

The Employee Must Be Heard

Once the reason is clear, the next step is process.

The employee should be informed of the allegations or reason under consideration. This should be done clearly and in a language the employee understands.

The employee should then be given a genuine opportunity to respond.

A disciplinary hearing should not be treated as a ceremony after the employer has already decided to terminate. It should be a real opportunity for the employee to answer the allegations, explain their position, call attention to relevant facts, and respond before a final decision is made.

A short, properly documented disciplinary meeting is often better than an emotional confrontation where no record is kept.

Documentation Is the Employer’s Protection

Documentation is where many employers fail.

A proper termination file should show:

• The complaint or performance issue
• The evidence relied on
• The notice to show cause
• The employee’s response
• The invitation to disciplinary hearing
• Minutes of the hearing
• The decision made
• The termination letter
• Final dues computation
• Proof of payment
• Handover or return of company property

Without these documents, the employer may struggle to prove that the termination was fair.

The Manner of Termination Matters

Employers should also be careful with the tone and manner of termination.

Even where termination is justified, the process should preserve dignity and reduce unnecessary escalation.

Risky approaches include:

• Dismissing an employee in anger
• Public humiliation
• Termination through vague WhatsApp messages
• Sudden lockout without process
• Using security to embarrass the employee
• Issuing a termination letter without prior hearing
• Introducing new allegations after the hearing

A poorly handled termination can turn a manageable employment issue into a costly legal dispute.

The Termination Letter Should Be Clear

The termination letter should be clear, measured and consistent with the process already followed.

It should state:

• The reason for termination
• The process followed
• The effective date of termination
• Final dues payable
• Any notice or payment in lieu of notice
• Requirements on handover
• Return of company property
• Any applicable clearance process

The letter should not introduce new allegations that were never put to the employee during the disciplinary process.

Do Not Fire First and Explain Later

For employers, the practical lesson is simple:

Do not fire first and explain later.

Before terminating an employee, pause and ask:

• Do we have a valid reason?
• Do we have evidence?
• Have we informed the employee of the issue?
• Have we given the employee a fair chance to respond?
• Have we documented the process?
• Have we calculated final dues correctly?
• Have we handled the matter with dignity?

If the answer to any of these questions is no, the business may be exposed.

Why This Matters for Employers

A proper termination process does not prevent an employer from taking action. It protects the employer when action becomes necessary.

It also helps the business avoid:

• Compensation awards
• Legal costs
• Workplace disruption
• Reputational damage
• Time-consuming disputes
• Claims of unfair termination
• Poor staff morale after the termination

Employment termination should therefore be treated as a legal process, not merely a management decision.

Before you fire an employee, get the process right. The cost of doing it properly is often far lower than the cost of defending a rushed termination.

Key Takeaways

• A valid reason alone may not be enough; the employer must also follow a fair process.

• Misconduct, poor performance, absconding duty and redundancy require different approaches.

• The employee should be informed of the issue and given a genuine opportunity to respond.

• Documentation is critical in defending a termination claim.

• Poorly handled termination can expose the business to compensation, costs and reputational harm.

• Employers should seek legal guidance before terminating where the matter is sensitive, disputed or high-risk.

Need Help Reviewing a Termination Process?

Before making the final decision, it is advisable to review the reason, evidence, hearing process, documentation and final dues.

A termination done properly protects both the employer and the business.