Probationary period in Kenya explained. Understand employee rights after probation, avoid legal risks, and get expert guidance. Book our team today!
Introduction
Probationary periods are a common feature of employment contracts in Kenya, allowing employers to assess an employee’s suitability for a role before confirming them on permanent terms. However, many employers overlook a critical legal requirement: what happens when an employee continues working beyond the probationary period without formal confirmation or extension? The Employment Act, 2007 is clear, and failure to comply exposes employers to significant legal risks.
Understanding the Probationary Period in Kenya
Under Section 42 of the Employment Act, 2007, a probationary contract cannot exceed six months, but it may be extended once for a further period not exceeding six months, with the employee’s consent. This means that the maximum probationary period in Kenya is twelve months.
During probation, either party may terminate the contract with at least seven days’ notice or payment in lieu of notice. Once the probation period lapses, the employee acquires the full statutory protections afforded to confirmed employees.
Continuation Beyond Probation Period
If an employer keeps an employee beyond the probationary period without formally confirming or extending the probation, the law deems that employee automatically confirmed. From that point, the employer cannot terminate the employee without adhering to the strict requirements of fair termination, including:
- Valid reasons for termination as required by Section 43.
- Procedural fairness and the right to be heard under Section 41.
- Protection against unfair termination under Section 45.
- Full entitlement to statutory benefits such as leave, notice, and service pay.
Judicial Interpretation of Probationary Period in Kenya
Kenyan courts have consistently reinforced this position. For instance, in Doris Kemunto Nyabuto v Sijimix Investments Ltd [2017] eKLR, the court held that an employee who continues working past probation without extension is deemed confirmed. Similarly, in Samuel G. Momanyi v Attorney General & Another [2012] eKLR, the court emphasized that probation cannot be indefinite and that employees cannot be kept in legal limbo.
Conclusion
For employers, ignoring probationary timelines can result in costly litigation for unfair termination. For employees, continued engagement beyond probation provides automatic confirmation and full protection under the law. Both parties should ensure that probation terms are properly managed and documented to avoid disputes.
Facing Employment Contracts Issues?
At F.M. Muteti & Co. Advocates, we provide professional advice on employment contracts, probation management, and workplace disputes. Whether you are an employer seeking compliance or an employee safeguarding your rights, our Employment and Labour Law team is ready to assist. Contact us today for tailored legal solutions that protect your interests.
Common FAQS: Probationary Period in Kenya
What Does the Labour Law Say About Probationary Periods?
In Kenya, labor law, specifically the Employment Act, 2007, governs probationary periods. A probationary contract must be in writing and explicitly state it’s for a probationary period. Its purpose is to allow the employer to assess an employee’s suitability for the job, and for the employee to evaluate the workplace. While this period is seen as a “trial,” the termination process must still be fair.
What is Section 42 of the Kenya Employment Act?
Section 42 of the Employment Act governs the termination of probationary contracts. It’s the cornerstone of probationary employment law.
- Subsection (1) states that the provisions of Section 41 (which requires a formal hearing before termination) do not apply to probationary contracts. However, recent court decisions have challenged this, emphasizing that even probationary employees have a right to a fair hearing.
- Subsection (2) limits a probationary period to a maximum of six months, though it can be extended for an additional period of up to six months with the employee’s written consent. The aggregate period cannot exceed 12 months.
- Subsection (4) stipulates that either party can terminate the contract by giving at least 7 days’ written notice or by paying 7 days’ wages in lieu of notice.
What is Section 37 of the Employment Act in Kenya?
Section 37 deals with the conversion of casual employment to a term contract. It states that if a casual employee works for a period that, in aggregate, amounts to at least one month, or performs a job that cannot reasonably be completed in less than three months, their contract is automatically converted to a monthly contract. This provides job security for long-serving casual workers.
What is Section 27 of the Employment Act in Kenya?
Section 27 focuses on working hours and rest days. It mandates that an employer must regulate working hours in accordance with the law and that an employee is entitled to at least one rest day in every seven-day period.
What is Section 44 of the Employment Act Kenya?
Section 44 addresses summary dismissal, which is the termination of an employee’s contract without notice. It is only justified in cases of gross misconduct, such as:
- Willful absence from work without leave.
- Being intoxicated during working hours.
- Willful neglect or poor performance of duties.
- Using abusive or insulting language towards an employer or person in authority.
- Committing a criminal offense against the employer.
It’s important to note that even with summary dismissal, the employer should still follow the principles of natural justice by giving the employee a chance to be heard.
What is Section 47 of the Employment Act?
Section 47 provides the legal avenue for an employee to file a complaint of summary dismissal or unfair termination. An employee who feels they have been unfairly dismissed can present a complaint to a labor officer within three months of the termination date. The labor officer will then try to facilitate a resolution between the parties.
How Much Notice Do I Need to Give During My Probationary Period?
Under Section 42(4), both the employer and the employee must give at least 7 days’ written notice to terminate a probationary contract. Alternatively, the party initiating the termination can pay the other party 7 days’ wages in lieu of notice.
What Not to Do During a Probationary Period?
During the probationary period, an employee should avoid actions that could demonstrate unsuitability for the role. These include:
- Failing to meet performance expectations or deadlines.
- Exhibiting a poor attitude or an inability to work with colleagues.
- Ignoring company policies or rules.
- Being regularly late or absent without valid reasons.
- Failing to ask for clarity on tasks when needed.
- Getting involved in office politics.
What is the Most Common Probationary Period for a New Employee?
While the law allows for up to six months, the most common probationary period for a new employee in Kenya is three months. This period provides enough time for a thorough assessment of the employee’s performance and fit within the organization.
What is the Maximum Probationary Period Allowed by Law?
The maximum probationary period allowed by the Employment Act is twelve months in aggregate. This includes the initial six months and an optional extension of a further six months, which must be agreed upon by the employee in writing.
What to Say When Terminating an Employee During Probation Period?
When terminating a probationary employee, it is crucial to be professional and direct. The communication should be in writing and clearly state the reason for termination, such as a failure to meet performance standards or demonstrate the required skills. You should also ensure that the employee understands the notice period or payment in lieu of notice and when they will receive their final dues. It is advisable to have a third party present during the meeting.
What Happens After Your 90-Day Probation Period?
After a 90-day probationary period, the employment contract can either be:
- Confirmed: If the employee has met the performance criteria, their employment is confirmed, and they become a permanent employee. The terms of their contract will then be governed by the standard termination clauses, which require a longer notice period (e.g., one month).
- Extended: The employer may extend the probation period for a further duration of up to six months if they need more time to assess the employee, and the employee agrees to the extension in writing.
- Terminated: The employer may decide to terminate the contract if the employee has not met the required standards, providing 7 days’ notice or payment in lieu.