Employer responsibilities in workplace disciplinary matters extend beyond issuing warnings or deciding whether an employee should be dismissed. When an employee is accused of misconduct, poor performance, or another workplace issue, an employer needs to follow a fair process, communicate the concerns clearly, consider the employee’s response, and keep proper records. In Kenya, the Employment Act, 2007 sets out important requirements that employers should consider when handling disciplinary action.
A disciplinary process can become difficult when emotions are involved. A manager may feel that an employee has acted irresponsibly, while the employee may have a different explanation for what happened. Giving both sides an opportunity to present their case can help the business understand the situation before making a final decision.
Why Proper Disciplinary Procedures Matter
Workplace discipline is meant to address problems and maintain reasonable standards within an organisation. It should not simply be treated as a way of punishing employees.
Employers may need to take disciplinary action when an employee repeatedly breaks workplace rules, fails to perform assigned duties, engages in misconduct, or breaches company policies. The appropriate response will depend on the circumstances, the seriousness of the issue, the employee’s record, and the applicable employment terms.
A business that handles these situations informally may sometimes create additional problems. For example, a manager might dismiss an employee immediately after an argument without giving the employee an opportunity to explain what happened. Even when the employer believes there was a valid reason for the decision, the procedure followed can become an issue.
Kenyan employment law requires employers to consider both the reason for termination and the fairness of the procedure used. Section 45 of the Employment Act provides that termination may be unfair where the employer cannot prove a valid and fair reason or cannot show that a fair procedure was followed.
1. Clearly Explain the Workplace Concern
One of the first employer responsibilities in workplace disciplinary matters is communicating the concern to the employee clearly.
An employee should understand what they are being accused of and why the matter is being treated as a disciplinary issue. Vague statements such as “your behaviour has been unacceptable” may leave an employee unsure about the specific conduct being questioned.
A clearer approach would identify the particular incident, date, workplace rule involved, or performance concern where applicable.
This gives the employee a reasonable opportunity to understand the issue and prepare a response.
2. Give the Employee an Opportunity to Respond
An employer should not make a final disciplinary decision without considering the employee’s explanation where the law requires a hearing.
Section 41 of the Employment Act provides that before termination on grounds of misconduct, poor performance, or physical incapacity, the employer should explain the reason being considered to the employee in a language the employee understands. The employee is also entitled to have another employee or a shop floor union representative of their choice present during the explanation.
The employer must then hear and consider the employee’s representations before deciding whether to terminate employment or summarily dismiss the employee in circumstances covered by the law.
This means a disciplinary hearing should give the employee a genuine chance to explain their side rather than becoming a meeting where the outcome has already been decided.
3. Consider the Employee’s Explanation
Holding a disciplinary meeting is only part of the process. The employer should also consider what the employee says.
An employee may provide information that changes the employer’s understanding of the incident. They may explain that they had permission, misunderstood an instruction, were dealing with circumstances that affected their performance, or believe that the allegation is inaccurate.
The explanation does not automatically mean that disciplinary action must stop. The point is that the response should be considered before a final decision is made.
Kenyan courts have repeatedly considered whether employees were given an opportunity to make representations before termination. Failure to follow the procedure under section 41 can contribute to a finding that termination was unfair.
4. Keep Proper Disciplinary Records
Good record keeping is another important responsibility for employers.
A business should keep relevant documents showing what happened during the disciplinary process. Depending on the situation, these may include:
- The employee’s employment contract
- Relevant workplace policies
- Written allegations or notices
- Show cause letters
- The employee’s written response
- Evidence considered during the process
- Disciplinary hearing records
- Minutes or notes of the hearing
- Previous warnings where relevant
- The final disciplinary decision
Proper records can help the employer explain how the decision was reached if the matter is later challenged.
Records should also be factual. Personal comments, insults, assumptions, or statements about an employee’s character have little value in a formal disciplinary record and can create unnecessary problems.
5. Base Decisions on Relevant Facts
Employers should separate allegations from established facts when handling disciplinary matters.
An accusation should not automatically be treated as proof of misconduct. The employer should consider the available information and the employee’s response before reaching a decision.
Section 43 of the Employment Act places the responsibility on the employer to prove the reason or reasons for termination in a claim arising from termination. Where the employer fails to prove the reason, the termination may be deemed unfair.
This makes proper investigation and documentation particularly useful when dealing with serious workplace allegations.
6. Apply Workplace Rules Consistently
Employees are likely to question disciplinary decisions when similar situations are handled very differently without a clear reason.
Businesses should therefore have clear workplace policies covering issues such as attendance, conduct, use of company property, harassment, confidentiality, performance, and other relevant workplace expectations.
Consistency does not mean every disciplinary case must produce the same outcome. Different circumstances can justify different responses. However, employers should be able to explain why a particular action was taken in a particular case.
7. Consider the Appropriate Disciplinary Action
Not every workplace problem requires dismissal.
Depending on the circumstances, an employer may consider measures such as counselling, a warning, additional supervision, performance support, or other action permitted under the organisation’s policies and applicable law.
Serious misconduct may require stronger action, including summary dismissal where the legal requirements are met. Section 44 of the Employment Act sets out circumstances relating to summary dismissal for gross misconduct, although the applicable procedural requirements should still be considered.
The seriousness of the issue, the employee’s history, the evidence available, and the applicable employment terms can all affect the appropriate response.
Common Mistakes Employers Should Avoid
Some disciplinary problems arise because employers act too quickly or fail to document what happened.
Common mistakes include:
- Dismissing an employee during an argument
- Failing to clearly explain the allegation
- Refusing to hear the employee’s explanation
- Treating an accusation as established fact
- Ignoring company disciplinary procedures
- Failing to keep records
- Applying workplace rules inconsistently
- Making a decision before the hearing
- Giving unclear reasons for disciplinary action
These mistakes can make an already difficult workplace situation harder to resolve.
Building a Fairer Disciplinary Process
A practical disciplinary process should give managers a clear framework to follow. The exact procedure can vary depending on the organisation, the employment contract, workplace policies, and the nature of the issue.
A business can start with a clear complaint or concern, review the available information, notify the employee of the issue, allow the employee to respond, consider the representations made, and then communicate the decision clearly.
Serious or complicated cases may require professional HR guidance, particularly where the employer is considering termination or summary dismissal.
How HR Support Can Help Employers
Employer responsibilities in workplace disciplinary matters can become difficult when managers are dealing with sensitive employee issues without professional HR support.
Coveted HR Services Ltd provides HR consultancy services that can help businesses establish practical people management processes and handle workplace matters more systematically. We help businesses review HR practices, support managers dealing with employee issues, and develop processes that are appropriate for their workplace.
Professional HR support can also help an employer identify gaps in its existing policies before a disciplinary dispute arises. This can give managers clearer guidance when difficult employee situations occur.
If your business needs support with workplace discipline, employee relations, HR policies, or other people related matters, contact Coveted HR Services Ltd for professional HR consultancy support.
Call/WhatsApp: 0798 330026
Email: info@covetedhrservices.co.ke