Do you know that you can sue your employer for suspending you without following the due process?
Suspension is quite common in the work place. An employee may be suspended if the employer suspects him/he of misconduct to allow for investigations.
What therefore does the Kenyan law on suspension entail?
The Foundation Of The Kenyan Law On Suspension
The Kenyan Employment Act, 2007 does not recognize suspension, which begs the question, what then makes for suspension as a practice in the employment sector?
Any employer who wishes to suspend an employee must do so as long as that is provided for in the policies governing the organization.
It therefore means that as long as the company’s policy declares that you may be suspended owing to gross misconduct, then the employer has a legal right to do so.
Should the employer disclose his/her reasons for suspension?
The employer is not obliged to disclose his/her reasons for suspending an employee.
Kenyan Law On Suspension – To pay in full or not to pay?
Whether to pay or not to pay is dependent on the organizations policies. An employer may choose to withhold the salary of the said employee pending the investigation outcomes.
However, if suspension is without pay, the said employer is supposed to define the period for suspension.
One the other hand, as long as termination has not been done and the organizations policies do not allow for suspension without pay, then the employee can be paid in full during that period.
What the Kenyan law on suspension says about the suspension period
The Kenyan courts maintain that suspension should not exceed a period of six months.
If it does, it amounts to constructive dismissal and as an employee you can go to court and sue for damages or reinstatement.
Kenyan law on suspension about when to sue the employer for wrongful suspension
Suspension as said is done when the employee is suspected of misconduct and is sent home to allow for investigation.
If however, the suspension does not follow the legal process, the said employee can sue the company for reinstatement or wrongful dismissal.
According to the cases that have been there in our Kenyan courts, you can sue your employer if;
If your suspension is not included in the company policies; suspension should only be conducted where the organization’s policies allow for that.
If suspension is without pay and the employer does not define the period of suspension.
The Kenyan law on suspension dictates that you can sue if the suspension period exceeds the maximum period of six months.
Lilian is a Communications Officer at Career Point Kenya. Got any queries related to Kenyan Labour Laws? Email them to firstname.lastname@example.org