Termination of Employees on Probation in Kenya: Legal Insights and Case Law
- Muhoro & Gitonga Associates
- Jan 29, 2024
- 5 min read
Updated: 3 days ago
Table of Contents
Understanding Probationary Employment in Kenya
Legal Framework Governing Probationary Contracts
Termination of Employees on Probation under the Employment Act
Constitutional Developments and Judicial Challenges
Landmark Case Law on Probationary Termination
2. Benjamin Nyambati Ondiba v Egerton University [2014] KEELRC 1161 (KLR)
Implications of Case Law for Employers
Implications of Case Law for Employees
Best Practices for Employers When Terminating Employees on Probation
Remedies Available to Employees on Probation
1. Introduction
The termination of employees on probation in Kenya is a nuanced and evolving area of employment law. While the Employment Act, 2007 initially granted employers wide latitude to end probationary contracts, courts in recent years have recalibrated the law to align with constitutional guarantees of fair labor practices.
This article explores the legal framework, recent judicial developments, and practical implications for both employers and employees.
2. Understanding Probationary Employment in Kenya
Probationary employment serves as a trial period where the employer evaluates an employee’s suitability for a permanent position. Typically lasting six months (extendable to twelve months with employee consent), this phase allows for mutual assessment.
However, its termination has raised legal controversies—balancing employer discretion with employee rights.
3. Legal Framework Governing Probationary Contracts
The Employment Act, 2007 is the primary legislation regulating probationary contracts. Section 42 of the Act sets out the rules:
Section 42(1): Employers can terminate probationary contracts with less procedural requirements.
Section 42(2): A probationary contract should not exceed six months unless extended (with consent).
Section 42(4): A minimum of seven days’ notice is required for termination.
Originally, Section 41 (procedural fairness) did not apply to probationary employees. However, this position has been challenged in court.
4. Termination of Employees on Probation under the Employment Act
Historically, probationary employees could be dismissed with limited protection. Employers only needed to provide notice or salary in lieu of notice. But critics argued this was inconsistent with Article 41 of the Constitution (right to fair labor practices) and Article 47 (right to fair administrative action).
Recent judgments have narrowed employer discretion by requiring adherence to procedural fairness, even for probationary staff.
5. Constitutional Developments and Judicial Challenges
The Constitution of Kenya, 2010 elevated labor rights, emphasizing fairness, dignity, and due process in employment. Courts have since questioned the validity of Section 42(1) of the Employment Act, finding it unconstitutional where it excludes probationary employees from procedural safeguards.
This shift marks a progressive move toward employee protection, ensuring employers balance efficiency with fairness.
6. Landmark Case Law on Probationary Termination
Issues: The main issues were whether Section 42(1) of the Employment Act, 2007, which excludes probationary employees from procedural fairness requiring a hearing before termination under Section 41, is unconstitutional for conflicting with fundamental rights under Articles 10, 24, 41, 47, and 50 of the Kenyan Constitution. Additionally, whether the termination of the petitioners’ contracts by the respondent without fair hearing violated constitutional rights and employment law principles.
Determination: The Court found that Section 42(1) of the Employment Act is inconsistent with Articles 41 and 47 of the Constitution because it denies probationary employees the fair administrative process guaranteed under these provisions. However, since the respondent acted under the existing law, termination was not held unconstitutional retroactively and no compensation was awarded. The Court emphasized the need for legislative review to align the law with constitutional norms.
Significance: This landmark judgment clarifies that probationary employees have constitutional protections to a fair hearing before termination, strengthening labor rights in Kenya. It calls for legislative reform to excise unconstitutional provisions in the Employment Act that allow arbitrary dismissal during probation. The ruling promotes adherence to constitutional values of fairness, equality, and transparency in employment practices.
Issues: The key issues were whether the claimant’s termination during and shortly after probation was unfair and unlawful under the Employment Act and the applicable Collective Bargaining Agreement (CBA). The case examined if the termination followed procedural fairness including notice and the right to be heard, especially given the claimant was on sick leave at termination. It also questioned whether unilateral deferment of probation confirmation without clear performance evaluation was valid.
Determination: The Court found the claimant was effectively confirmed as a permanent employee after his probation ended without formal notice to the contrary, since the respondent failed to meet legal conditions for extending probation and did not conduct a fair hearing before termination. The termination was ruled unfair and contrary to the Employment Act sections 41, 42, and 45 and the applicable CBA. The claimant was awarded three months’ salary pay in lieu of notice, accrued leave, passage and baggage allowances, and damages for unfair termination. The claimant was directed to return university property.
Significance: This judgment clarifies the limits of probationary employment under Kenyan law, emphasizing that probation cannot be arbitrarily extended or terminated without following fair procedure and legal safeguards. It reinforces employees’ constitutional and statutory rights to fair treatment even during probation and sets important precedents on employer obligations regarding performance evaluation, communication, and procedural fairness. Employers are reminded to align probation practices strictly with the Employment Act and CBAs to avoid claims of unfair dismissal.
7. Implications of Case Law for Employers
These cases establish that:
Employers must conduct hearings before terminating probationary employees.
Termination should be based on valid and documented reasons.
Probationary contracts must comply with the Constitution and Employment Act.
Failure to follow due process exposes employers to litigation and damages.
8. Implications of Case Law for Employees
For employees, the evolving jurisprudence means:
Probationary workers now enjoy greater security of tenure.
They can challenge unfair terminations in court.
Awareness of rights empowers employees to negotiate fairer contracts.
Courts are increasingly siding with employees, ensuring constitutional protection.
9. Best Practices for Employers When Terminating Employees on Probation
9.1 Document Performance Issues
Employers should maintain records of performance appraisals, misconduct reports, and disciplinary actions.
9.2 Provide Constructive Feedback
Regular feedback sessions help employees improve and show that the employer acted in good faith.
9.3 Observe Procedural Fairness
Employers must hold a hearing, allow representation, and provide clear reasons before termination.
9.4 Seek Legal Counsel
Consulting employment lawyers reduces risks of non-compliance and costly disputes.
10. Remedies Available to Employees on Probation
Employees unfairly terminated during probation can seek:
Reinstatement to their role.
Compensation for unfair termination.
Damages for constitutional violations.
Declarations affirming their rights.
11. Conclusion
The termination of employees on probation in Kenya has shifted from an employer-dominated process to one where constitutional rights and fairness prevail. Courts have made it clear that probation is not a license for arbitrary dismissal.
Employers must now tread carefully, ensuring procedural fairness, documentation, and compliance with the Employment Act and Constitution. Employees, on the other hand, should be proactive in asserting their rights and seeking remedies where necessary.
12. Frequently Asked Questions (FAQs)
Q1. Can an employer terminate a probationary employee without notice?
No. The Employment Act requires a minimum of seven days’ notice or payment in lieu of notice.
Q2. Must probationary employees be given a hearing before termination?
Yes. Courts have ruled that procedural fairness under Section 41 of the Employment Act applies to probationary employees.
Q3. What remedies exist for unfair termination during probation?
Remedies include reinstatement, compensation, and damages.
Q4. Can a probationary period be extended?
Yes, but only with the employee’s consent and for a maximum of twelve months in total.
Q5. Are probationary employees entitled to benefits?
Yes, probationary employees are entitled to benefits under their contracts, though some entitlements may vary.
