What Are Your Rights During Termination or Redundancy Under the Kenyan Employment Act, 2007?

Answers to key workplace questions on unfair dismissal, Section 41 disciplinary hearings, redundancy pay, and ELRC claims in Kenya.

Whether you are an employer managing a growing workforce or an employee facing disciplinary action or restructuring, understanding the Employment Act, 2007 is essential. Here are answers to the most frequent labour law questions handled by Job Mwanthi & Associates Advocates.

Q1: What makes a termination of employment lawful in Kenya?

Under Sections 41, 43, and 45 of the Employment Act, 2007, Kenyan courts require every employer to prove two things before terminating an employee:

• Substantive Justification: A valid, fair, and provable reason related to the employee's conduct, capacity, compatibility, or the employer's operational requirements.
• Procedural Fairness (Section 41): Issuing a formal Notice to Show Cause in a language the employee understands, giving adequate time to respond, and holding an oral disciplinary hearing where the employee is accompanied by a colleague or union representative of their choice.

Q2: What are the mandatory steps for declaring Redundancy under Section 40?

An employer cannot simply terminate staff citing 'restructuring'. Section 40 requires at least one month's written notice to both the employee (or union) and the local Labour Officer, objective selection criteria (considering seniority, skill, and reliability), payment of accrued leave in cash, one month's notice pay, and severance pay at not less than 15 days' pay for each completed year of service.

Q3: What remedies does the Employment and Labour Relations Court (ELRC) award for unfair termination?

Where termination is found to be unfair, the ELRC may award up to 12 months' gross salary in compensation, unpaid terminal dues, certificate of service, and in specific circumstances, reinstatement.