Summary Dismissal Under the Employment Act, Kenya (2007): A Complete Guide

Summary dismissal is one of the most serious forms of termination an employer can impose on an employee in Kenya, but it’s governed by strict rules under the Employment Act, 2007. If you’ve been summarily dismissed—or you’re an employer considering it—it’s crucial to understand the legal grounds, employee rights, and due process required.

At Ultimate Forensic Consultants, we specialize in helping both employees and employers navigate summary dismissal cases fairly and legally. Let’s dive into the legal framework of summary dismissal under the Employment Act, Kenya (2007)!

⚖️ 1. What is Summary Dismissal?

✅ Summary dismissal is the immediate termination of an employee’s contract without notice or payment in lieu of notice, due to gross misconduct.

👉 It’s covered under Section 44 of the Employment Act, 2007.
👉 Employers can only summarily dismiss an employee if their misconduct is so serious that it makes continued employment untenable.

✨ Key takeaway: Even though it’s immediate, summary dismissal must follow due process, or it becomes unfair dismissal.

🚩 2. Legal Framework: Section 44 of the Employment Act (2007)

Section 44(1) of the Employment Act allows an employer to summarily dismiss an employee for gross misconduct, but only in specific situations. Let’s break them down!

🔍 Grounds for Summary Dismissal (Section 44(4))

👉 An employer may summarily dismiss an employee if they:

1️⃣ Are absent from work without permission or a lawful excuse for more than two consecutive working days.

Example: No-show for multiple days without notifying the employer.

2️⃣ Are intoxicated during working hours and unable to perform their duties.

Example: A machine operator working under the influence, creating a safety hazard.

3️⃣ Willfully neglect to perform work or are careless, leading to serious loss or damage.

Example: A cashier repeatedly leaves the till open, causing financial loss.

4️⃣ Use abusive or insulting language towards the employer or other employees.

Example: Threatening a supervisor or creating a hostile work environment.

5️⃣ Knowingly fail to follow lawful instructions from the employer.

Example: Refusing to attend mandatory safety training after multiple warnings.

6️⃣ Commit or are suspected of committing a criminal offense at the workplace.

Example: Being caught stealing company property or committing fraud.

✅ These actions break the trust required for employment, making immediate dismissal legally justifiable.

🚫 3. What’s NOT Valid for Summary Dismissal

👉 The law makes it clear that not every mistake qualifies as gross misconduct. Summary dismissal is not justified for:

🚫 Poor performance (unless it’s gross incompetence after clear warnings).
🚫 Minor mistakes or first-time infractions.
🚫 Absenteeism with a valid reason (such as illness or emergencies).
🚫 Discrimination—firing someone based on gender, race, religion, or disability is unlawful.
🚫 Retaliation—dismissing an employee for whistleblowing or filing a complaint is wrongful termination.

🔍 4. Due Process for Summary Dismissal (Section 41 of the Employment Act)

⚠️ Even with valid grounds for summary dismissal, due process must be followed—this is where many employers go wrong.

✅ Step 1: Issue a Show Cause Letter

The employer must give the employee a written letter explaining the allegations.
The employee should have at least 48 hours to respond in writing.

✅ Step 2: Hold a Disciplinary Hearing

The employer must allow the employee to defend themselves in a formal hearing.
The employee has the right to be accompanied by a colleague or union representative.

✅ Step 3: Make a Fair Decision

After considering the employee’s defense and evidence, the employer can decide to summarily dismiss, issue a warning, or take other disciplinary action.
The decision must be communicated in writing.

📢 Warning: Skipping any of these steps could render the dismissal unfair and unlawful, even in cases of gross misconduct.

🛡️ 5. Employee Rights After Summary Dismissal

Even after lawful summary dismissal, employees in Kenya are entitled to:

✅ Payment for days worked up to the dismissal date.
✅ Payment for any accrued and unused leave days.
✅ A certificate of service (Section 51 of the Employment Act).
✅ Overtime and commission payments earned before dismissal.

🚫 What you’re NOT entitled to:

Notice pay or payment in lieu of notice (since the dismissal is immediate).
Severance pay (unless specified in the contract or in redundancy cases).

🚩 6. What to Do If You’re Summarily Dismissed Unfairly

If you believe your summary dismissal was unfair, you have legal options!

👉 Step 1: Request a Termination Letter

Ask for a formal letter explaining why you were dismissed.
If your employer refuses, request it via email or in writing.

👉 Step 2: File an Internal Appeal

Most companies allow you to challenge dismissal within 5–14 days.
Request reinstatement, compensation, or a mutual separation agreement.

👉 Step 3: File a Complaint with the Ministry of Labour

If your employer ignores your appeal, file a complaint with the Labour Office for unfair dismissal.

👉 Step 4: Take Legal Action

File a case with the Employment and Labour Relations Court (ELRC) for compensation, reinstatement, or damages for unfair termination.

💼 7. How to Challenge an Unfair Summary Dismissal

✅ Grounds for Challenging:

Lack of due process (no disciplinary hearing).
Insufficient evidence of gross misconduct.
Discrimination or retaliation.
Harsh punishment for a minor offense.

📢 Kenyan courts often side with employees when employers skip legal procedures, even in serious misconduct cases!

🏆 8. How Ultimate Forensic Consultants Can Help

At Ultimate Forensic Consultants, we specialize in:

🛡️ Defending Employees Against Unfair Summary Dismissals – We ensure employers follow due process.
🛡️ Drafting Strong Appeal Letters – Highlighting legal violations and procedural errors.
🛡️ Filing Legal Claims for Unfair Dismissal – Representing employees in court to seek compensation or reinstatement.
🛡️ Providing Legal & HR Support to Employers – Helping companies conduct fair disciplinary hearings and avoid wrongful dismissal lawsuits.

📞 Facing a summary dismissal? Let us help you get justice! Contact Ultimate Forensic Consultants today!

🎯 9. Conclusion

✅ Summary dismissal under the Employment Act, Kenya (2007) is legal only when gross misconduct occurs, but employers must still follow due process.
✅ Employees have the right to challenge unfair dismissals and seek compensation, reinstatement, or damages through the Employment and Labour Relations Court.
✅ Employers can protect themselves from wrongful dismissal lawsuits by ensuring they comply with Kenyan labor laws.

📞 Need help with a summary dismissal case? Contact Ultimate Forensic Consultants today!

🙋‍♀️ FAQs

1. Can my employer fire me immediately without a hearing?
🚫 No! Even in cases of gross misconduct, your employer must provide a disciplinary hearing before dismissal (as per Kenyan labor laws).

2. What happens if my employer terminates me without notice?
✅ You’re entitled to payment in lieu of notice—unless it’s a lawful summary dismissal.

3. Can I get compensation for unfair termination or summary dismissal?
✅ Yes! The Employment and Labour Relations Court can award you reinstatement, compensation for lost wages, and damages for emotional distress.

📢 Need support? Let Ultimate Forensic Consultants fight for your rights!