By Purity Ngigi

An employee’s poor performance is a common reason for the termination of their employment. The Employment Act No. 11 of 2007 of Kenya (the “Act“) provides that the employer must detail every allegation of poor performance before any disciplinary hearing. An employer should support allegations of poor performance with evidence such as performance appraisals, written warning letters and performance improvement plans.

Kenyan courts have held that: “Poor performance is an allegation that should be supported by evidence of specific performance targets, appraisal of performance, with specific results….”

Employers ought to set goals and deliverables for employees. The employee’s performance is measured against specific Key Performance Indicators (KPIs). An employer should introduce Performance Improvement Procedures (PIP’s) to help employees meet the expected goals. The employer should do this before commencing a disciplinary hearing for poor performance.

PIPs refer to a set of goals objectively set for an employee whose performance is below expectation. PIPs are required to include the KPIs or expected outcomes that an employee shall be measured against at the end of the exercise. A PIP is a tool for training, guidance and assistance to the employee where an employee potentially lacks the skills, knowledge or competencies to meet the employer’s performance standards.

There is no law providing for the creation and implementation of PIPs. PIPs place and practice in Kenya by way of employer’s personnel policies and determination of Kenyan courts. The courts have held that performance development plans and performance improvement plans, and the capability hearings/meetings are internal and management prerogatives.  Kenyan courts have emphasized various requirements to be fulfilled for PIPs to be effective and enforceable. These include:

a) The employer must communicate the decision to put an employee on a PIP. The employer should hold a meeting with the employee to share all the PIP details and receive the employee’s views on the proposed process.

b) The PIP must set out the standards of quality and quantity in performance that the employee is expected to meet. Failure by the employer to communicate these expectations may result in the employee not understanding what may be expected of them during the PIP and render it ineffective.

The courts have held that: “Where the employee cannot meet standards of quality and quantity when those standards have never been communicated to him/her, and likewise, the employee cannot perform if no training has been given. If the required standards have never been communicated to the employee, and you have never taken steps to ensure proper training, a case of poor performance must fail.”

c) Once the employer communicates the standards of performance to the employee, the employer should avail means and opportunities such as training, mentorship, coaching to help the employee achieve the desired standards.

d) The end goal of a PIP should be to help improve the employee’s performance and not institute termination. The PIP should run for the entire duration. The employer ought to maintain the expectation that the employee’s performance should improve by the end of the process. Employees should be wary of commencing disciplinary proceeding while the PIP is ongoing, as this can expose them to liability.

e) During the duration of the PIP, it should include intermittent meetings to review and evaluate the employee’s performance. The intermittent sessions help track employee’s performance over time and provide timely feedback.

f) The employer should maintain records of every meeting and communication during the PIP. These records serve as crucial evidence of the success or failure of the PIP process.

There is no stipulated period that a PIP should run. Similarly, there is no stipulation for how long an employee should have worked in the organization for the employer to place them under a PIP. An employer may set eligibility requirements for a PIP process, for example, to exclude employees on probation from a PIP process. However, at all times, an employer should have regular performance appraisals for its employees and the record maintained and communicated to the employee.

The purpose of a PIP is to boost the employee’s performance. There has been no improvement in the employee’s performance; the employer has a valid reason to terminate the employee’s employment. However, the employer must still follow the procedure of termination as is required under the Employment Act.

 

For further assistance on this, please contact us at matthew@mmagareadvocates.com.