What the Kenyan Law says on Termination of Employment

Terminating employment has become so common among professionals and employers in Kenya. In this post, Elizabeth, Communication’s Officer at Corporate Staffing services helps answer frequently asked questions relating to termination of employment in Kenya.

  1. On what grounds can a contract of employment be terminated?
    An employment contract, as stipulated under the Employment Act, can be terminated in these ways; first, an employer can give the employee a notice of intention to terminate the contract. Secondly, an employee can give the notice to terminate their contract or resign. Thirdly, a contract can be terminated through an agreement between the employer and the employee e.g. at the end of an internship. And lastly, a contract can be terminated automatically in circumstances such as death or loss of business for the employer.
  2. What can make an employer terminate me?
    Thanks to the law, section 45 (2) and section 46, an employer cannot fire you because they don’t like you. In any form of termination, the employer is required to prove the reasons for the termination; otherwise, it will be termed as unfair.

The law provides for the following grounds as justifiable termination of employment by an employer;
•Poor performance
•Physical incapacity
•Employer’s operational requirements/retrenchment
•Participation in an illegal strike

  1. Can an employer fire me without giving me a notice?
    News flash: Yes, your employer can fire you without notice. The Kenya Labor laws allow for this. That said, according to section 36 and 38, an employer is required to pay you a sum equal to the salary which you would have accrued during the notice period. This is what is usually referred to as payment in lieu of notice.
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The reverse is equally applicable, where you as an employee resigns and does not give proper notice, you will be required to compensate your employer for the notice period you would have served.

  1. What happens if my contract is terminated and I have pending leave days?
    Don’t worry, your leave days will not be lost. According to section 40 (1) (e), if an employee has accrued leave days upon termination, the employer shall pay you on a pro rata basis an amount in cash for the leave days you are entitled.
  2. What amounts to an unfair termination of employment?
    In order for termination to be fair in the eyes of the law, it has to be both substantively and procedurally fair. An employer is expected to provide the reasons for the termination, otherwise, it will be termed unfair according to section 45 (2). The law demands that an employee is given an opportunity to be heard before a termination decision is taken against them as provided in section 41 (2).
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In the Kenya labour laws as provided by the Employment Act, summary dismissal amounts to an unfair termination with consequences. This is specified in section 47 and 49 (1) & (3).

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