What does the Kenyan Labour law stipulates when it comes to suspension?
Suspension occurs when there is need for investigations to determine whether or not the employee should be fired or not depending on the allegations.
Gross misconduct, poor performance, physical incapability etc. can all be grounds for suspension as the employer uses that time to conduct investigations when the employee is not around.
The Employment Act 2007 has no provision for suspension. However, section 12 of the Act provides that any employer with more than 50 employees must have a statement on disciplinary rules.
This is where suspension should be provided for.
Therefore, for the suspension of an employee to be lawful, it must be provided for in the company’s policies.
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1. Should an employer give the reasons for suspension?
You are under no legal obligation as the employer to tell the employee why she/he has been suspended. Its completely up to you to decide whether you want to reveal the reason why or not.
2. Kenyan Law On Suspension – Payment during suspension.
There are different views when it comes to this. The first being that as long as the employee has not been fired from the organisation, they are entitled to their full pay.
The second view is that, the decision of whether or not to pay an employee during the suspension period depends on the outcome of the investigations conducted.
The third is that, the salary of the employee on suspension can be withheld if it allowed in the organisation’s policies.
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If the employee is to be suspended, then the period of suspension should be well defined.
Withholding a suspended employee’s salary is not provided for under the Employment Act 2007 and as such has no legal validity.
3.Kenyan Law On Suspension – Duration of suspension
The courts have stated that 6 months is the maximum period of suspension and that a longer suspension period is considered constructive dismissal and the employee can sue for damages.
When after the investigations the employee is cleared of any wrong doings, they have to be reinstated to their position.
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