Managing employee performance is one of the most important responsibilities of any organization.

It is also one of the areas where employers can get into serious trouble if the process is handled casually.

A recent decision by Kenya’s Employment and Labour Relations Court provides an important reminder that terminating an employee for alleged poor performance is not simply a matter of telling someone that they are not meeting expectations.

There must be a genuine reason.

There must be evidence.

There must be a fair process.

And where an employee has a protected characteristic, such as pregnancy, employers must be particularly careful to ensure that employment decisions are not influenced by discrimination.

The ruling offers valuable lessons for Kenyan businesses on performance management, Performance Improvement Plans, employee rights, documentation, workplace discrimination and fair termination.

More importantly, it raises a question every organization should be asking:

Are we actually managing performance, or are we simply documenting problems when we have already decided to let someone go?

Poor Performance Is Not a License for Instant Termination

Employers have a legitimate interest in ensuring that employees meet the standards required for their roles.

A business cannot operate effectively when deadlines are repeatedly missed, customers are unhappy or employees consistently fail to deliver agreed responsibilities.

However, performance management must be approached systematically.

An employee should know what is expected of them, understand where they are falling short and, where appropriate, be given a reasonable opportunity to improve.

This is where many organizations get it wrong.

A manager may conclude:

“This employee is underperforming. Let’s terminate the contract.”

But HR should be asking a different set of questions:

• What were the employee’s agreed responsibilities?
• Were performance expectations clearly communicated?
• What evidence demonstrates the performance gap?
• Was the employee informed about the concerns?
• Was feedback provided?
• Was support offered?
• Was the employee given an opportunity to improve?
• Were the organization’s HR policies followed?
• Was the same standard applied to other employees?

These questions can make the difference between a defensible HR decision and a costly employment dispute.

A Performance Improvement Plan Is Not a Termination Notice

Performance Improvement Plans, commonly referred to as PIPs, can be extremely useful when implemented correctly.

A PIP should provide an employee with a structured opportunity to understand their performance gaps and improve.

It should establish:

Clear performance gaps

The organization should identify precisely what is not meeting expectations.

“Your performance is poor” is not sufficiently useful.

A stronger approach would identify specific missed targets, recurring errors, service issues or measurable performance gaps.

Clear expectations

The employee should understand what improvement looks like.

Measurable targets

Where possible, performance should be assessed using objective indicators.

A realistic timeframe

Employees need sufficient time to demonstrate meaningful improvement, depending on the nature of the role and the performance issue.

Appropriate support

Training, coaching, supervision, resources or clarification of responsibilities may be necessary.

Regular reviews

A PIP should involve meaningful conversations about progress rather than simply waiting until the end of the period to announce a decision.

The key principle is simple:

A PIP should be an opportunity to improve, not a disguised exit strategy.

If an organization has already decided that an employee will leave regardless of whether performance improves, the PIP risks becoming little more than paperwork.

Client Complaints Need Context

Many organizations rely heavily on customer or client complaints when assessing employee performance.

Complaints can certainly provide valuable evidence.

However, one complaint does not automatically establish that an employee is a poor performer.

HR should investigate the bigger picture.

Was the complaint an isolated incident?

Was the employee responsible for the issue?

Were there system failures?

Were deadlines realistic?

Did the employee have the resources required?

Was there a communication breakdown?

Had similar complaints occurred before?

Were expectations clearly communicated?

This distinction matters because effective performance management should be based on patterns, evidence and agreed expectations, rather than assumptions.

A client complaint can trigger an investigation.

It should not automatically become a termination letter.

Timing Can Raise Difficult Questions

One of the important issues highlighted by the Court’s ruling was the timing between an employee disclosing a pregnancy and the emergence of performance concerns.

The Court considered the sequence of events and ultimately found that the termination was discriminatory on the basis of pregnancy.

This creates an important lesson for Kenyan employers.

It does not mean that pregnant employees cannot be subjected to legitimate performance management.

They can.

It means that an employer must be able to demonstrate that performance decisions are based on legitimate, objective and properly documented reasons rather than a protected characteristic.

If an employee has historically performed well and serious performance concerns suddenly emerge immediately after disclosing a pregnancy, the organization should expect those circumstances to receive close scrutiny.

The safest approach is not to avoid performance management.

It is to ensure that performance management is fair, evidence-based and consistently applied.

Pregnancy Should Never Influence an Employment Decision

Pregnancy is protected under Kenya’s employment and constitutional framework.

Employers must therefore ensure that pregnancy does not influence decisions involving:

• Recruitment
• Promotion
• Performance reviews
• Training
• Work allocation
• Leave
• Compensation
• Contract renewal
• Disciplinary action
• Termination

Businesses naturally need to plan for employee leave and operational continuity.

That is good management.

But operational planning must never turn into discriminatory treatment.

The right response to an employee’s upcoming leave is workforce planning, delegation and continuity planning.

It is not penalizing the employee for becoming pregnant.

Documentation Is Your Friend

One of the biggest weaknesses in many HR departments is inadequate documentation.

A manager may genuinely remember discussing an employee’s poor performance several times.

But if there is no record, the organization may struggle to demonstrate what actually happened.

Good HR documentation should create a clear timeline.

Depending on the circumstances, this can include:

• Employment contracts
• Job descriptions
• Performance objectives
• Appraisal records
• Performance review notes
• Emails relating to performance
• Coaching records
• Warning letters
• PIP documentation
• Review meetings
• Employee responses
• Training records
• Disciplinary proceedings
• Termination documentation

Documentation should not be created simply to build a case against an employee.

It should create clarity, accountability and consistency.

Your HR Policy Must Match What Happens in Practice

Many organizations have impressive HR manuals.

The problem is that managers sometimes do not follow them.

An organization may have a detailed performance management process that requires regular reviews, feedback and opportunities for improvement.

But when a difficult case arises, management may skip several steps.

That creates risk.

If your policy says one thing and your actual practice does another, employees can challenge the inconsistency.

The solution is straightforward:

HR policies must be understood, implemented and consistently applied.

This requires more than writing policies.

Managers need training on how those policies should work in real workplace situations.

Fair Termination Has Two Sides

Another major lesson from the ruling is that employers need to consider both the reason for termination and the process used to reach the decision.

It is not enough to say:

“The employee was underperforming.”

The organization should also be able to demonstrate how it reached that conclusion.

This involves two broad questions.

Was there a valid reason?

Was there genuine evidence that the employee was failing to meet the required standards?

Was the process fair?

Was the employee given an opportunity to understand the concerns and respond?

Both matter.

A legitimate concern handled through an unfair process can still create legal exposure.

Proportionality Matters

Not every performance problem should result in termination.

A sensible HR process considers the seriousness of the issue, its frequency, its impact and the employee’s history.

For example, there is a difference between:

One missed deadline

and

Repeated missed deadlines despite coaching, feedback and reasonable opportunities to improve.

There is also a difference between:

A minor customer complaint

and

A consistent pattern of serious service failures.

HR decisions should therefore be proportionate to the problem.

Before recommending termination, organizations should ask:

Is this response reasonable given the circumstances?

That question can prevent emotionally driven decisions.

The Manager’s Role Matters More Than Many Organizations Realize

Performance management is often treated as an HR responsibility.

It should not be.

HR can provide the framework, policies and guidance, but managers interact with employees every day.

Managers are often the first people to notice:

• Declining performance
• Missed deadlines
• Communication problems
• Excessive workloads
• Employee disengagement
• Skills gaps
• Workplace conflicts

If managers wait six months before raising a performance issue with an employee, the eventual conversation becomes much harder.

Good performance management is therefore continuous.

It involves:

Set expectations → Monitor → Give feedback → Coach → Review → Improve

Not:

Ignore → Ignore → Ignore → Terminate

Sometimes the Problem Is Not the Employee

This is perhaps one of the most important lessons for organizations.

Before concluding that someone is underperforming, management should ask whether the organization has created the conditions required for success.

Does the employee have the necessary resources?

Is the workload realistic?

Is the job description clear?

Has the employee been properly trained?

Are priorities constantly changing?

Does the employee have an effective manager?

Are there process problems affecting delivery?

Are targets achievable?

Is the person actually in the right role?

Sometimes what looks like an employee performance problem is actually an organization design problem.

How Peak Dynasty Helps Organizations Address These Challenges

At Peak Dynasty Consulting, we believe effective HR should be proactive rather than reactive.

Organizations should not wait until an employee dispute reaches a lawyer or court before reviewing their people systems.

Our approach helps businesses strengthen the systems that influence employee performance and organizational success.

This includes areas such as:

Talent Management

Ensuring organizations attract, develop and retain people whose skills align with business requirements.

Performance Management

Helping organizations establish clear expectations, measurable objectives, feedback mechanisms and structured performance improvement processes.

Organization Design

Reviewing structures, roles, responsibilities and reporting relationships to ensure that organizations are positioned to operate effectively.

Culture Development

Helping organizations build workplace cultures based on accountability, communication, trust and performance.

Change Management

Supporting organizations and employees through organizational transitions while maintaining clarity and engagement.

The objective is not simply to help an organization deal with difficult employees.

It is to build a system where people understand what is expected, managers know how to manage performance and employees have a fair opportunity to succeed.

A Practical HR Health Check for Kenyan Businesses

The recent Court ruling provides a good reason for organizations to conduct an internal HR review.

Ask yourself:

1. Are job expectations clear?

Can every employee explain what success looks like in their role?

2. Are performance targets measurable?

Can managers demonstrate objectively whether an employee is meeting expectations?

3. Do managers give regular feedback?

Or do performance conversations only happen when something goes wrong?

4. Is your PIP process genuine?

Does it actually provide an opportunity for improvement?

5. Are employees given support?

Are training, coaching and resources available where appropriate?

6. Are your HR policies followed?

Does what happens in practice match what your HR manual says?

7. Is documentation adequate?

Could your organization reconstruct the history of a performance issue six months later?

8. Are employment decisions free from discrimination?

Could you demonstrate that protected characteristics did not influence the decision?

9. Are managers trained?

Do managers understand how to handle performance concerns, disciplinary issues and difficult conversations?

10. Are your decisions proportionate?

Is the proposed action reasonable given the circumstances?

If your organization struggles to answer some of these questions, that may be a sign that your HR systems need attention.

The Bigger Lesson for Employers

The Court ruling should not be interpreted as saying that employers cannot manage poor performance.

Quite the opposite.

Businesses have every right to expect employees to meet reasonable performance standards.

The lesson is that performance management must be structured, fair and evidence-based.

A strong HR system should allow an organization to identify performance gaps early, communicate expectations clearly, provide support, document progress and make fair decisions when improvement does not occur.

It should also protect employees from discriminatory or arbitrary treatment.

That balance is at the heart of effective people management.

Don’t Wait for a Court Case to Review Your HR Systems

Employment disputes are often the end result of problems that began much earlier.

An unclear job description.

A manager who avoided giving feedback.

A PIP that was poorly designed.

A policy that was never implemented.

Inadequate documentation.

A rushed termination.

A decision that was influenced by assumptions rather than evidence.

By the time the dispute reaches court, the organization may already be dealing with financial costs, reputational damage and employee morale issues.

Strategic HR aims to prevent these problems from reaching that stage.

At Peak Dynasty Consulting, we help organizations examine their people, processes, structures and workplace culture to create HR systems that support both employee success and business performance.

Because effective HR is not about waiting for problems to happen.

It is about building organizations that are better prepared to prevent them.

The Bottom Line

Poor performance should be managed. But it should be managed fairly. Pregnancy should never become a reason for adverse treatment. A PIP should provide a genuine opportunity to improve.

Managers should be trained to handle performance issues. HR policies should be consistently applied. And every significant employment decision should be supported by clear evidence and a fair process.

For Kenyan employers, these are not simply good HR practices.

They are part of building responsible, sustainable and legally resilient organizations.

Need to Review Your HR Systems?

Peak Dynasty Consulting works with organizations seeking to strengthen their talent management, performance management, organization design, workplace culture and change management practices.

If your organization is experiencing performance challenges, high employee turnover, unclear roles, management gaps or concerns around HR processes, a structured HR review can help identify the issues before they become costly problems.

Better HR systems create better workplaces. And better workplaces create stronger organizations.

Legal disclaimer: This article is intended for general HR and educational purposes and does not constitute legal advice. Employment matters are fact-specific and organizations should seek appropriate professional legal advice when handling actual disciplinary, discrimination or termination matters.