Workplace misconduct rarely arrives in a neat package. An employee may be accused of dishonesty, harassment, insubordination, conflict of interest, theft, misuse of company property or breach of confidentiality. Sometimes the complaint comes from another employee. Sometimes it is uncovered through an audit, an email trail, a whistleblowing report or an internal control review.
An employer's instinct may be to act immediately. But in Kenya, acting quickly does not mean skipping a fair and appropriate investigation.
A poorly handled investigation can turn an otherwise legitimate disciplinary matter into a claim for unfair termination. The real question is therefore not simply whether an employee committed misconduct. It is whether the employer can demonstrate that it investigated the allegations fairly, reached a reasonable conclusion based on the available evidence and followed the procedure required by law and its own policies.
The Constitution of Kenya, 2010 guarantees every person the right to fair labour practices.
Why Investigate First
The Employment Act, 2007 requires an employer to have both a valid and a fair reason for termination of employment. An employee facing termination for misconduct must be informed of the allegations and allowed to respond. The Act further require the employer to establish and justify the reason for termination and demonstrate that the termination was fair.
An investigation helps the employer establish the facts before making that decision. The objective is not to prove that the employee is guilty. It is to establish the facts fairly and determine whether there is sufficient basis for proceeding with disciplinary action.
Start with the Allegation, Not the Punishment
A good investigation begins by defining the complaint clearly.
For example, saying that an employee is "dishonest" is too broad. An investigation should identify what the employee allegedly did that constitutes dishonesty.
Was a company payment made without authorisation? Was a document altered? Was a customer given false information?
The distinction is important because the employee must eventually be told the specific allegations against them.
Under section 41 of the Employment Act, before termination on grounds of misconduct, poor performance or physical incapacity, the employer must explain to the employee the reason for which termination is being considered and allow the employee to respond. The employee is also entitled to have another employee or shop-floor union representative of their choice present during the explanation and hearing.
An investigation that produces vague allegations makes it difficult for the employer to satisfy this requirement and makes it difficult for the employee to understand and properly respond to the allegations.
Preserve the Evidence Early
Once a serious complaint is received, employers should consider preserving relevant evidence before it disappears.
However, an employer's right to investigate workplace misconduct does not mean that it has unlimited freedom to collect employee information. The Data Protection Act, 2019 regulates the processing of personal data in Kenya.
If an employer needs to review an employee's personal information, it should have a legitimate purpose and ensure that the collection and use of the information is proportionate to the investigation. Employers should also consider applicable data protection principles, including purpose limitation, data minimisation, confidentiality and appropriate security measures.
An investigation should not be biased. The investigation should follow the evidence wherever it leads. The employer should have a genuine and reasonable basis for its conclusion.
Investigation and Disciplinary Hearing Are Not the Same
An investigation and a disciplinary hearing serve different purposes. The investigation is primarily concerned with establishing the facts and gathering relevant evidence. A disciplinary hearing, on the other hand, provides the employee with an opportunity to respond to the allegations before the employer makes a final decision.
Employers should therefore avoid treating the investigation as a disciplinary hearing or reaching a predetermined conclusion before the employee has been given an opportunity to respond.
What Happens After the Investigation?
If the investigation establishes sufficient grounds for disciplinary action, the employer can proceed with the disciplinary process.
This may include a show-cause letter and disciplinary hearing. The employee should receive sufficient information about the allegations to understand and respond to them. Their response must be genuinely considered before a final decision is made.
Employers should also follow their own disciplinary policies and procedures. A company that has adopted a formal disciplinary process should be careful not to ignore it when dealing with a difficult employee.
Employees should likewise familiarise themselves with their employment contracts, staff handbooks and applicable workplace policies.
Serious Misconduct Still Requires a Fair Process
The Employment Act recognises circumstances in which an employee may be summarily dismissed for gross misconduct.
However, the seriousness of the allegation does not mean that an employer can simply dismiss the employee without following due process.
A strong case for dismissal still requires a properly managed process.
This is one of the most common areas of employment risk for Kenyan employers.
The employer should check the employment contract, HR manual, collective bargaining agreement and applicable law when determining whether suspension is permissible, whether it should be on full pay and what conditions apply.
Most importantly, the suspension letter should not prejudge the investigation.
There is a significant difference between saying:
"You are suspended pending investigation into allegations of financial misconduct."
and:
"You are suspended because you stole company funds."
The first preserves the integrity of the investigation, while the second suggests that the employer has already concluded the investigation and the disciplinary process is complete.
Employers should also be alert to retaliation against complainants, witnesses or employees who participate in an investigation. A person who raises a genuine complaint or assists with an investigation should not be subjected to adverse treatment simply because they participated in the process.
Why a Fair Investigation Matters
Workplace investigations are not simply about dealing with difficult employees. They help organisations:
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Reduce employment litigation risk. A properly documented process provides evidence that the employer acted lawfully and fairly.
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Make better decisions. An investigation can reveal whether an allegation is genuine, exaggerated or unsupported.
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Protect employees and management. A fair process ensures that both the complainant and the employee accused of misconduct are treated appropriately.
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Strengthen internal controls. Investigations can identify weaknesses in policies, supervision and internal systems.
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Promote a fair workplace. A transparent process can help employees understand that complaints and allegations will be taken seriously and handled fairly.
How We Can Assist
We advise and represent employers and employees in relation to workplace investigations, disciplinary processes and employment disputes.
Our services include advising on:
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Workplace misconduct and disciplinary investigations
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Sexual harassment and workplace complaints
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Show-cause and suspension processes
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Disciplinary hearings and appeals
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Employment contract and HR policy reviews
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Termination and summary dismissal
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Data protection issues arising from workplace investigations
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Workplace grievances and employee complaints
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Challenging unfair disciplinary action or termination
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Negotiating employment exits and settlement agreements
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Employment dispute prevention and litigation support
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Employment claims and representation before the Employment and Labour Relations Court
The Employment and Labour Law team at CM Advocates LLP has extensive experience in Kenya’s employment law and regulatory framework, and regularly advises employers and employees on workplace investigations, disciplinary processes, statutory compliance, employment contracts and policies, and the prevention and resolution of workplace disputes.
If you would like to consult on this article or any other legal issue, you may contact us through corporate.commercial@cmadvocates.com
CONTRIBUTOR
Maureen Odongo, Senior Associate Advocate
CM ADVOCATES LLP
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