Employee Termination Guide in Kenya What Employers Should Check Before Dismissing an Employee

Terminating an employee is not just an internal management decision. It is a legal process that must be handled carefully, documented properly and carried out fairly.

Many employers only seek legal advice after the termination letter has already been issued. By then, the problem may already have been created. The employee may allege unfair termination, lack of hearing, discrimination, unpaid dues, victimization or breach of contract.

The safer approach is to pause before terminating and ask whether the business has both a proper reason and a proper process.

Before taking disciplinary action, the employer should identify the actual ground for the proposed termination.

It is not enough to say the employee is “difficult,” “careless,” “not serious,” “disrespectful” or “not performing.” Those frustrations must be translated into a proper employment ground.

Common grounds include:

• Misconduct
• Poor performance
• Physical or medical incapacity
• Absconding duty
• Breach of contract
• Redundancy
• Loss of trust and confidence
• Operational restructuring

Each ground requires a different approach. Misconduct is not handled the same way as poor performance. Redundancy is not handled the same way as absconding duty.

• ✓Identify the exact reason for possible termination.
• ✓Confirm whether the issue is misconduct, poor performance, incapacity, redundancy or another ground.
• ✓Confirm whether the reason is supported by evidence.
• ✓Avoid vague reasons such as “bad attitude” unless specific conduct is documented.
• ✓Check the employment contract and HR policy before acting.
• ✓Confirm whether the employee is unionized or covered by a collective bargaining agreement.

Before issuing a notice to show cause or inviting the employee to a disciplinary hearing, the employer should gather the evidence relied upon.

For misconduct, useful evidence may include:

• Emails
• Attendance records
• CCTV records
• Warning letters
• Internal memos
• Witness statements
• Customer complaints
• Inventory records
• Financial records
• System access logs
• Incident reports
• Signed company policies

For poor performance, useful evidence may include:

• Job description
• KPIs or targets
• Appraisal reports
• Performance improvement plans
• Supervisor notes
• Previous warnings
• Training records
• Work output records
• Client or customer feedback

• ✓Identify the evidence supporting the allegation.
• ✓Keep copies of relevant documents.
• ✓Confirm whether witnesses are available.
• ✓Preserve emails, messages, attendance logs and internal reports.
• ✓Avoid relying only on verbal complaints.
• ✓Ensure the evidence relates to the specific allegation.

A notice to show cause informs the employee of the allegations or concerns and gives them an opportunity to respond.

The notice should be clear, specific and fair. It should not be written as if the employer has already decided to dismiss the employee.

A good notice should include:

• The allegations or concerns raised
• The dates or incidents relied on
• The policy, duty or expectation allegedly breached
• The documents or evidence relied on where appropriate
• The time given to respond
• The possible consequences if the explanation is unsatisfactory

• ✓Prepare a written notice to show cause.
• ✓State the allegations clearly.
• ✓Give enough detail for the employee to respond.
• ✓Provide reasonable time for response.
• ✓Avoid abusive, emotional or prejudged wording.
• ✓Keep proof that the notice was delivered.

After receiving the employee’s explanation, the employer should consider it before deciding whether to proceed to a disciplinary hearing.

This step is often overlooked. Some employers issue a notice to show cause as a formality, but the decision to terminate has already been made. That creates risk.

The response may show that:

• The allegation is mistaken.
• The employee had a valid explanation.
• The issue requires further investigation.
• Other employees were involved.
• The matter is less serious than first believed.
• The employer’s records are incomplete.
• A warning or corrective action is more appropriate than termination.

• ✓Read and assess the employee’s response.
• ✓Compare the response against the evidence.
• ✓Conduct further investigation if necessary.
• ✓Decide whether a disciplinary hearing is needed.
• ✓Keep a record of why the matter is proceeding or being closed.
• ✓Avoid rushing from notice to termination without considering the response.

Where the matter proceeds to hearing, the employee should receive a written invitation.

The invitation should state the purpose of the hearing, the allegations to be discussed, the date and time, the employee’s right to be accompanied where applicable, and the possible consequences.

The employee should be given reasonable time to prepare.

• ✓Issue a written invitation to disciplinary hearing.
• ✓State the date, time and venue.
• ✓Restate the allegations or attach the notice to show cause.
• ✓Inform the employee that they may respond at the hearing.
• ✓Inform the employee of the right to be accompanied where applicable.
• ✓Give reasonable time to prepare.
• ✓Keep proof of delivery of the invitation.

At the hearing, the employer should explain the allegations and allow the employee to respond. The employee should be allowed to present their explanation, refer to relevant documents and raise mitigating circumstances.

The employer should avoid shouting, intimidation, humiliation or public embarrassment. The hearing should be calm, structured and properly recorded.

The meeting should usually cover:

• The allegations
• The evidence relied on
• The employee’s response
• Clarifying questions
• Mitigation
• Any documents produced
• Whether further investigation is required

• ✓Explain the allegations during the hearing.
• ✓Allow the employee to respond.
• ✓Allow the employee to refer to documents or explanations.
• ✓Allow representation where applicable.
• ✓Ask clarifying questions fairly.
• ✓Record minutes of the hearing.
• ✓Avoid making the final decision before hearing the employee.
• ✓Allow adjournment where fairness requires it.

After the hearing, the employer should consider the evidence, the employee’s response, the seriousness of the issue, the employee’s record, the company policy and the appropriate sanction.

Termination should not be automatic.

Possible outcomes may include:

• No action
• Verbal warning
• Written warning
• Final warning
• Suspension where lawful and justified
• Performance improvement plan
• Transfer or reassignment
• Termination with notice
• Summary dismissal where legally justified

• ✓Review the evidence after the hearing.
• ✓Consider the employee’s explanation.
• ✓Consider mitigation and past record.
• ✓Check whether company policy provides sanctions.
• ✓Choose a proportionate outcome.
• ✓Record reasons for the decision.
• ✓Ensure the decision is consistent with how similar cases have been handled.

If termination is the outcome, the termination letter should be carefully drafted.

It should not introduce new allegations that were never discussed with the employee. It should reflect the process already followed and the reason for the decision.

A proper termination letter should include:

• The reason for termination
• Reference to the disciplinary process followed
• The effective date of termination
• Notice or payment in lieu of notice where applicable
• Final dues
• Handover obligations
• Return of company property
• Clearance process
• Certificate of service where applicable

• ✓State the reason for termination clearly.
• ✓Refer to the hearing or process followed.
• ✓Avoid new allegations not raised earlier.
• ✓State the effective date.
• ✓State notice or pay in lieu of notice where applicable.
• ✓Set out final dues.
• ✓Require handover and return of company property.
• ✓Keep proof that the letter was delivered.

Even where termination is justified, failure to pay lawful dues can expose the employer to claims.

Final dues may include:

• Salary earned up to the last working day
• Accrued leave
• Notice pay where applicable
• Service pay where applicable
• Severance pay in redundancy cases
• Commissions or allowances where contractually due
• Reimbursements
• Pension or statutory deductions reconciliation
• Certificate of service

• ✓Calculate salary up to the last working day.
• ✓Confirm accrued leave.
• ✓Confirm notice pay or lawful summary dismissal position.
• ✓Confirm whether service pay applies.
• ✓Confirm whether severance pay applies in redundancy.
• ✓Deduct lawful advances, loans or liabilities properly.
• ✓Issue a final dues computation.
• ✓Keep proof of payment.

Summary dismissal is termination without notice, or with less notice than the employee would otherwise be entitled to. It may apply in serious cases, but it should not be used casually.

Even where the employer believes the employee’s conduct is serious, the employer should still document the reason, give the employee a chance to respond where required, and preserve evidence.

Common issues that may lead employers to consider summary dismissal include:

• Gross misconduct
• Theft or dishonesty
• Serious negligence
• Absence without lawful cause
• Intoxication at work
• Refusal to obey lawful instructions
• Serious breach of duty
• Violence or threats at the workplace

• ✓Confirm whether the conduct is serious enough to justify summary dismissal.
• ✓Gather evidence.
• ✓Give the employee an opportunity to respond where required.
• ✓Keep minutes of the hearing.
• ✓State the reason clearly in the dismissal letter.
• ✓Pay lawful dues up to the date of dismissal.
• ✓Keep all records.

Poor performance should be handled carefully because it often requires proof that the employee knew the expected standard and was given a reasonable opportunity to improve.

A proper poor performance process may involve:

• Clear job description
• Measurable targets
• Performance reviews
• Written feedback
• Training or support
• Performance improvement plan
• Follow-up review
• Warning of possible consequences

• ✓Confirm the employee’s role and targets.
• ✓Document performance gaps.
• ✓Give feedback in writing.
• ✓Provide support or guidance where reasonable.
• ✓Give time to improve.
• ✓Review progress.
• ✓Warn the employee of possible consequences.
• ✓Avoid treating poor performance as misconduct unless there is misconduct.

Where an employee stops reporting to work, the employer should avoid assuming that the employee has resigned or abandoned employment.

The employer should make reasonable efforts to contact the employee and ask them to explain their absence.

• ✓Confirm the dates of absence.
• ✓Check leave records, medical records or communication.
• ✓Contact the employee through known channels.
• ✓Issue a notice to show cause.
• ✓Give the employee an opportunity to explain.
• ✓Keep proof of calls, messages, letters or emails.
• ✓Proceed only after documenting the employee’s failure to respond or unsatisfactory explanation.

Redundancy arises where the employer’s operational needs require reduction of staff or abolition of positions. It is not based on employee wrongdoing.

Because redundancy affects employees who may not have done anything wrong, the process must be handled carefully.

A redundancy process should address:

• Business reason for redundancy
• Affected roles
• Selection criteria
• Required notices
• Consultation
• Labor office notification where required
• Union notification where applicable
• Severance pay
• Final dues
• Handover

• ✓Identify the genuine operational reason.
• ✓Identify affected roles, not targeted individuals.
• ✓Prepare fair selection criteria.
• ✓Issue required notices.
• ✓Notify the labor office where required.
• ✓Consult affected employees.
• ✓Calculate severance and final dues.
• ✓Document every stage.

Many termination disputes arise from avoidable errors, not from the absence of a complaint against the employee.

Common mistakes include:

• Terminating verbally without written process
• Issuing a termination letter before hearing the employee
• Relying on rumors
• Using vague reasons
• Skipping the notice to show cause
• Holding a hearing with no minutes
• Introducing new allegations in the termination letter
• Locking the employee out without process
• Using redundancy to remove a specific employee
• Failing to pay final dues
• Failing to issue a certificate of service
• Ignoring the employment contract or HR manual

• ✓Avoid emotional or rushed decisions.
• ✓Avoid verbal termination.
• ✓Avoid changing reasons after the process begins.
• ✓Avoid skipping documentation.
• ✓Avoid public humiliation.
• ✓Avoid using one process to disguise another.
• ✓Avoid withholding lawful dues without justification.

Every termination decision should have a file that shows the reason, process, evidence and final dues.

A proper termination file may include:

• Employment contract
• Job description
• HR policies
• Complaint or incident report
• Evidence relied upon
• Notice to show cause
• Employee response
• Hearing invitation
• Hearing minutes
• Decision record
• Termination letter
• Final dues computation
• Proof of payment
• Handover documents
• Certificate of service

• ✓Keep the employment contract.
• ✓Keep the HR policy or disciplinary code.
• ✓Keep the evidence.
• ✓Keep all notices issued.
• ✓Keep the employee’s responses.
• ✓Keep minutes of meetings.
• ✓Keep final decision records.
• ✓Keep proof of final dues payment.
• ✓Keep handover records.

Before terminating an employee, the employer should answer these questions:

• Do we have a valid reason?
• Do we have evidence?
• Have we followed the correct process?
• Has the employee been heard?
• Is the outcome proportionate?
• Have we documented the process?
• Have we calculated final dues correctly?
• Are we treating the employee with dignity?

If the answer to any of these questions is uncertain, the employer should pause and review the process before making the final decision.

A termination done properly protects the employer, the business and the workplace. A termination done hastily can expose the business to compensation, costs, disruption and reputational harm.