Employment Act // New Take on Probation Contract Termination

By Purity Ngigi - Sundays, Senior Associate Employment Law at Matthew & Partners LLP.

The Employment Act 2007 provides that an employer need not follow the termination procedure nor give a reason for termination to an employee on probation.

In a recent decision, the Kenyan courts have declared that terminating a probation contract without giving the employee a valid reason and following the termination procedure is unconstitutional (the “Judgement”).

The rationale for the provision of the Employment Act is that employees on probation are on a trial period to determine their suitability for the job prior to the confirmation of their employment.

The court reached the Judgement following a legal suit where an employer terminated employees on probation from employment without giving them a reason nor an opportunity to be heard.

The employees, through their lawyer, argued that termination without according the employees an opportunity to be heard was discriminatory and limited their rights under the constitution.

What the Law Says

Article 47 of the Constitution provides that a person has a right to fair administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair.

Further, where administrative action is likely to affect a person adversely, the person is entitled to be given written reasons for the action. Article 50 of the Constitution provides that every person has the right to have any dispute that the application of law can resolve decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

The court ruled that excluding employees on probation from enjoying these rights amounted to discrimination and was therefore illegal.

The International Labour Organisation Convention (ILO), to which Kenya is a signatory and from which Kenya benchmarked much of its employment laws, provides that:

A member may exclude the following categories of employed persons from all or some of the provisions of this convention.

Workers engaged under a contract of employment for a specific period or a specified task. Workers serving a period of probation or a qualifying period of employment, determined in advance and of reasonable duration.

Workers engaged on a casual basis for a short period. The Employment Act was drafted based on the ILO Convention’s provisions. The rationale being of the convention was to provide less onerous obligations to the specific categories of employees listed under Article 2 of the ILO Convention.

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It is worth noting that in the suit, the court did not award any damages to the employees for unfair termination, acknowledging that the employer acted on the provisions of the law at the time.

However, going forward and in light of the ruling, the requirements for termination of employment of a probationary employee require the employee to be provided with a valid reason.

The employer is required to follow the statutory procedure for termination Employers shall be required to follow these rules to avoid the risk of being sued for unfair termination or wrongful dismissal.

This Judgement, while laudable in protecting the rights of employees, opens a pandora box of the employer’s obligation at the time of termination. Given that the right to a fair hearing is a constitutional right, it can arguably extend to the termination of casual employees or even independent contractors, placing an onerous burden on the employer.

About the Author:

Purity Ngigi – Sundays is a Senior Associate at Matthew & Partners LLP. She practices general corporate commercial law and specializes in employment law. She was admitted as an Advocate in 2017 having acquired her law degree from Jomo Kenyatta University of Agriculture and Technology. She has advised several notable organizations in the fintech, health, and agriculture sectors on employment matters.