This article focuses on the remedies available in disputes emanating from employment relationships as governed by Employment Law in Kenya. Employment relationships in Kenya are guided by the Employment Act, 2007, the Labour Relations Act, and other relevant laws. Disputes often arise between employers and employees regarding unfair termination, redundancy, discrimination, or breach of contract. When such disputes are brought before the Employment and Labour Relations Court (ELRC) in Kenya, the Court has powers to grant various remedies
Whether your workplace is in Nairobi’s corporate sector, Mombasa’s port industries, Kisumu’s growing business hubs, or rural agricultural settings, the Employment Act applies uniformly across Kenya. However, the ELRC has divisions in Nairobi, Mombasa, Kisumu, Nakuru, and Eldoret, making access to justice easier nationwide.
This guide explains the main remedies in employment law in Kenya and answers common questions employees and employers ask.
Jurisdiction of the ELRC in dealing with Employment Disputes
The ELRC hears disputes involving Employment law in Kenya as follows:
- Employers and employees
- Employers and trade unions
- Employers’ organizations and trade unions
- Disputes between trade unions or between employer organizations
- Disputes between trade unions and their members
- Disputes over the registration and election of trade union officials
- Registration and enforcement of collective agreements
What Are the Remedies Available for Employment Disputes in Kenya?
The general remedies for employment disputes in Kenya include:
- Compensation for Unfair Termination
- Employees can be awarded up to 12 months’ gross salary for unfair dismissal.
- The Court considers factors such as length of service and whether due process was followed.
- Reinstatement or Re-engagement
- This order requires an employer to reinstate a dismissed employee, provided the termination occurred within the last three years. Courts are cautious about issuing reinstatement orders, especially in the private sector, due to the likelihood of a hostile work environment.
- Payment in Lieu of Notice
- If proper notice is not given, employees are entitled to salary for the notice period.
- Severance Pay in Redundancy Cases
- Employees declared redundant must receive at least 15 days’ pay for each year worked plus notice and accrued benefits.
- General and Special Damages
- For cases such as discrimination, withheld wages, or breach of contract.
- Certificate of Service
- Mandatory for employees who have worked for more than 4 weeks.
- Specific Performance
This remedy compels a party to fulfill contractual obligations where monetary compensation is inadequate. It may be used to require an employer to improve working conditions or pay an employee as per their contract. However, courts rarely issue such orders due to the potential for strained employer-employee relations. - Declaratory Orders
These court proclamations determine whether an action was lawful or unlawful. For instance, a court may declare an employee’s termination unfair, leading to further orders on compensation or reinstatement.
9. Damages
The Courts may also award damages as follows;
- Sexual harassment or discrimination
- Workplace injuries
- Expenses incurred for the employer’s benefit (e.g., relocation costs)
- Damage to an employee’s reputation affects future employability:
- Compensatory Orders
The court can award compensation based on factors such as length of service, employee preferences, and circumstances of termination. Under Section 49 of the Employment Act, remedies for wrongful dismissal or unfair termination include:
- Payment in lieu of notice: Compensation for the notice period required under the law or employment contract.
- Severance pay: Given when an employee is declared redundant, calculated at a minimum of 15 days’ pay per completed year of service.
- Payment for accrued leave days: Employees are entitled to payment for unused leave days.
- Overtime pay: Compensation for work beyond contractual hours, including work done on public holidays.
- Compensation for unfair termination: Up to 12 months’ salary may be awarded for wrongful dismissal or unfair termination.
- Wages for days worked: Employees terminated before month-end must be paid for the days worked, in addition to payment in lieu of notice.
- Courts may also order employers to pay litigation costs and interest on awards.
Other Interim Remedies Available in Employment Disputes
The Court has the authority to issue various interim remedies pending the conclusion of a matter including:
1. Interim Preservation Orders (Injunctions)
These orders maintain the status quo pending the final decision. They may require an employer to keep an employee at work or prevent employees from engaging in industrial action before the dispute is resolved. The goal is to ensure that the court’s final ruling is not rendered ineffective by changes in circumstances.
2. Prohibitory Orders
These orders prevent a party from taking certain actions, such as stopping an employer from terminating an employee or halting a recruitment process.
Court Costs
The court may order the losing party to bear the costs of the suit or require each party to cover their own legal costs. In some cases, no cost orders are issued.
Common Questions on Employment Remedies in Kenya
1. Can I sue my employer for unfair termination in Kenya?
Yes. You can file a claim at the Employment and Labour Relations Court within 3 years of termination. If successful, you may receive compensation, damages, or reinstatement.
2. How much compensation can I get for unfair dismissal in Kenya?
The maximum is 12 months’ gross salary, but the Court decides based on the circumstances of each case.
3. What are my rights if I am declared redundant in Kenya?
You are entitled to notice, severance pay, and accrued benefits. If redundancy procedures are not followed, you may claim unfair termination.
4. Do all employees get a certificate of service?
Yes. Section 51 of the Employment Act requires every employer to issue one when employment ends.
Conclusion
Remedies under employment law in Kenya ensure fairness and protect both employees and employers. From compensation and reinstatement to redundancy benefits and damages, the law strikes a balance between safeguarding workers’ rights and guiding employers on compliance.
At Khayesi & Khayesi Advocates LLP, we offer tailored legal advice on employment law in Kenya, including disputes before the ELRC, workplace compliance, redundancy processes, and employee relations.
📌 Call to Action
📞 Contact Khayesi & Khayesi Advocates LLP for expert guidance on employment disputes in Kenya.
- Nairobi Office: Utumishi Coop House, 4th Floor, Mamlaka Road, Nairobi
- Phone: +254724276901 | +254711472518
- Email: [email protected]
- 🌐 https://knkadvocates.co.ke
