Unfair termination in Kenya: notice, hearing, court and time limit

Section 35 sets the minimum notice: one day where wages are paid daily, seven days where paid weekly, and 28 days where the employee is paid monthly. A contract may promise more, and the employer may pay wages in lieu of notice instead of letting you work it out.

Notice is separate from the reason. Paying you 28 days does not make a dismissal fair if the reason or the procedure fails the tests below.

Before terminating for misconduct, poor performance or physical incapacity, the employer must explain the grounds to you in a language you understand, in the presence of a fellow employee or a union representative of your own choice, and must hear your representations. Skipping this step is on its own a ground for finding the termination unfair.

Under section 43 the employer must prove the reason for termination; failure to do so makes the termination unfair. Section 45 forbids unfair termination outright and requires the employer to show the reason was valid and fair and that the procedure was fair. Section 44 allows summary dismissal for gross misconduct, but the employer must still be able to justify it.

The Employment and Labour Relations Court may order the wages you would have earned during the notice period, reinstatement or re-engagement, and compensation of up to twelve months' gross wages. It weighs matters such as your length of service, your own contribution to the dismissal, and whether you wanted to keep the job.

Claims go to the Employment and Labour Relations Court, created by the Employment and Labour Relations Court Act, 2011, which has the status of the High Court. Section 90 of the Employment Act bars claims filed more than three years after the act complained of, so the deadline is often the first thing to check.

How much notice must an employer give in Kenya?

Section 35 of the Employment Act, 2007 (Cap. 226) sets the minimum: a day's notice where wages are paid daily, seven days where paid weekly, and 28 days where the employee is paid monthly. A contract may give longer notice, and the employer may pay wages in lieu of notice instead.

Can I be dismissed without a hearing in Kenya?

No. Section 41 of the Employment Act requires the employer to explain the grounds to the employee, in a language the employee understands, in the presence of a fellow employee or a union representative of the employee's choice, and to hear the employee's representations before terminating for misconduct, poor performance or incapacity.

Which court hears an unfair termination claim in Kenya?

The Employment and Labour Relations Court, established under the Employment and Labour Relations Court Act, 2011. It has the status of the High Court and sits in Nairobi, Mombasa, Nakuru, Kisumu, Nyeri, Eldoret and other stations.

How long do I have to file an unfair termination claim in Kenya?

Section 90 of the Employment Act bars a claim brought more than three years after the act complained of, except for continuing injury, where the period runs from the cessation of the injury.