Probation Laws: What you Need to Know

Most organizations now put newly hired employees through a probationary period before fully integrating them into the company.

So, before we go any further, let’s make sure you understand what probation is.

According to the Kenyan Employment Act, a probationary contract of employment is one that is for a period of no more than twelve months and is officially worded to state that it is for a probationary period.

So, a company will not decide to hire you on probation one morning. You should be aware of the type of employment you are doing from the outset.

So with this in mind, please note that your employer has two options when employing you to join their team

  1. To either give you a probationary contract
  2. Or give you a normal contract with a probation period at the start

On that note, Section 4 of Article 42 states that if your contract is on probation, your employer is free to terminate it by giving you not less than seven days’ notice of termination of the contract or by paying you seven days’ wages in lieu of notice without having to give reasons for the termination.

Despite this simple escape, probationary contracts are not popular among Kenyan professionals seeking senior jobs because they provide little comfort to individuals who may have to consider leaving their fixed-term contract for a probationary contract!

Furthermore, an employee on probation may believe that if he or she successfully completes the probationary period, he or she would be retained, which may not be the employer’s intention.

As a result of these factors, many businesses prefer different ways, such as offering you a probation term and plainly saying whether you will be hired if you complete it successfully.

In August, a three-judge bench of the Employment and Labour Relations court annulled a law that allowed employers to sack employees who are on probation without following due process. The judges argued that “it does not make sense to accord an apprentice and indentured learner who are included in the definition of an employee, the procedural benefits involved in termination but deny the same to an employee simply because they hold a probationary contract.”