HR Internal Investigations 2025 Comparisons

An HR internal investigation is an internal review conducted within an organisation to address an incident, allegation or concern. The objective is to gather evidence and reach an objective conclusion that enables the organisation to take appropriate action, whether against specific employees involved or more broadly. The primary purpose of such an investigation is to uncover the facts, determine accountability, and support informed decision-making.

An HR internal investigation is usually required in the following circumstances.

Employee Misconduct

Internal investigations may be triggered by allegations of employee misconduct. These investigations aim to establish the facts surrounding an incident and determine the appropriate course of action.

Workplace misconduct can include behaviours outlined under Section 44(4) of the Employment Act, which identifies acts constituting gross misconduct. Examples include theft, fraud, violence, and other serious infractions.

An investigation may also arise from an incident report indicating that a significant event occurred at the workplace requiring further inquiry. By way of example, a theft might prompt an investigation if the circumstances are unclear.

Policy Violations

Policy violations can necessitate an internal HR investigation to objectively determine if a company policy has been breached. If so, appropriate actions can be recommended as a result.

Not all policy violations constitute misconduct; some may require corrective measures rather than disciplinary action. By way of example, investigations might address violations of data protection policies to ensure compliance and propose remedies where necessary.

Whistle-Blower Reports

Whistle-blower complaints often lead to HR investigations. Most organisations have mechanisms enabling employees to report concerns anonymously.

Internal investigations are crucial for addressing these complaints, determining their validity, and deciding on next steps. Similarly, grievances filed by employees may prompt investigations when the underlying issues require deeper analysis.

Harassment and Bullying

Reports or incidents of harassment or bullying warrant internal investigations. These investigations focus on establishing whether or not the alleged behaviour occurred, understanding the context, and deciding on appropriate remedial actions.

Fraud

Fraud investigations are essential for identifying the specifics of fraudulent activity within an organisation. The findings inform decisions about disciplinary actions against involved employees and measures to safeguard the organisation against future incidents.

Health and Safety Issues

Workplace injuries may lead to HR investigations in order to establish the facts surrounding the incident. Such investigations are crucial for compliance with the Work Injury Benefits Act, as their findings can influence determinations by the Directorate of Safety and Health regarding liability and compensation.

Retaliation

Allegations of retaliation, such as adverse actions against an employee for reporting wrongdoing or for engaging in lawful workplace activities, require internal investigations. These inquiries aim to verify the facts and provide a basis for appropriate corrective measures or disciplinary actions.

In Kenya, there is no specific legal requirement mandating employers to conduct HR investigations in particular circumstances. However, certain general provisions in the law provide a foundation for employers to investigate workplace issues when necessary. What follows are the primary legal bases for carrying out HR internal investigations.

Constitution of Kenya 2010

Article 41 of the Constitution of Kenya 2010 guarantees every person the right to fair labour practices. This includes the right to reasonable working conditions and a clean, healthy work environment.

This constitutional provision allows employers to investigate any situation that may infringe on an employee’s constitutional rights. Such situations include harassment, discriminatory practices, or unsafe working conditions.

Employment Act 2007

The Employment Act 2007 provides several grounds for conducting HR investigations, as follows.

Sexual harassment claims (Section 5(3))

Employers must ensure that sexual harassment policies include provisions aimed at protecting the confidentiality of the complainant. Disclosure is only permitted when necessary for investigating the complaint or implementing disciplinary measures. This establishes a clear legal basis for investigating sexual harassment claims.

Proving reasons for termination (Section 43)

Section 43 places the burden on employers to prove valid reasons for terminating an employee. Failure to provide such proof renders the termination unfair. Section 43(2) further specifies that the reasons for termination must be those the employer genuinely believed to exist at the time of termination.

Internal HR investigations help employers gather the evidence required to satisfy this burden of proof before taking disciplinary action. The case of Nicholus Muasya Kyula v Farmchem Ltd (2012) eKLR reinforces this requirement. The Employment and Labour Relations Court emphasised: “It is not sufficient for the employer to make allegations of misconduct against the employee. The employer is required to have internal systems and processes for undertaking administrative investigations and verifying the occurrence of the misconduct before a decision to terminate is arrived at.”

Other legal bases for conducting internal investigations

While the Constitution of Kenya 2010 and the Employment Act 2007 provide a solid foundation, employers may also rely on the following.

• Workplace policies and procedures ‒ internal company policies often outline procedures for investigations, which can form part of the legal basis for conducting them.
• Collective bargaining agreements (CBAs) – for unionised employees, CBAs may stipulate specific conditions under which investigations are required.
• Contractual obligation – employment contracts or agreements may explicitly or implicitly require investigations into certain issues.

Employment and labour law does not specifically require employers to establish particular channels for reporting or prescribe the structure of such channels. However, the general statutory provisions listed here indicate that employers should have a reporting channel in place, leaving the specifics of its design and implementation to the employer’s discretion.

• Constitution of Kenya 2010 – as mentioned in 1.2 Legal Bases, Article 41 of the Constitution of Kenya 2010 guarantees everyone the right to fair labour practices, including the right to reasonable working conditions and a clean, healthy work environment. This provision forms the foundation for best practices in employment, such as establishing reporting channels so as to uphold the duty of ensuring fair labour practices.
• Employment Act 2007 – under Section 5(3)(b)(vi) of the Employment Act 2007, employers are required to ensure that sexual harassment policies include clear provisions outlining how complaints of sexual harassment can be reported. This means that any workplace sexual harassment policy must establish a specific reporting channel for such complaints.
• Work Injury Benefits Act 2007 – Section 21 of the Work Injury Benefits Act 2007 requires employees to report any workplace accidents or injuries to their employer. As a result, it is essential to have a formal reporting channel in place for this purpose.

There are no statutory requirements specifying who can conduct an HR internal investigation or which parties may be involved in the process. The investigation is primarily governed by the organisation’s policies, which should ideally provide clear guidelines on how the process will be conducted and whether third-party involvement is permitted.

In the absence of specific policies, the employer has the discretion to determine the process, taking into account the seriousness of the issue. External counsel can be engaged to conduct the investigation and, in highly complex cases, forensic investigators or other experts may be necessary.

Although internal investigations are ideally led by the HR Department or the People Team, the involvement of an external party may be warranted depending on the complexity of the matter. If external counsel is engaged, it is advisable to involve them at the earliest opportunity so as to ensure a thorough and effective investigation.

The investigation should ideally be conducted by the most objective party available. To ensure fairness, it should not be led by anyone who may reasonably be implicated in the matter or whose involvement could give rise to a perception of bias. For this reason, it may be advisable to engage an external party or external counsel to conduct the investigation, thereby eliminating any appearance of bias.

The importance of fairness in investigations was emphasised by the appellate court in the case of Judicial Service Commission v Shollei & Another (Civil Appeal 50 of 2014) (2014) KECA 334 (KLR) (19 September 2014) (Judgment), as follows: “I accept as good law, persuasive to me, the decision of the English Court of Appeal in Selvara Jan v Race Relations Board (1976) 1 ALL ER 12 on the manner in which boards and committees should conduct investigation to satisfy the requirement of fairness. I agree with the holding by Lord Denning MR, as captured in the case summary:

“What the duty to act fairly requires depends on the nature of the investigation and the consequence which it may have on the person affected by it. The fundamental rule is that, if a person may be adversely affected by the investigation and report, he should be informed of the substance of the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure.” (my emphasis).”

There are no specific legal requirements setting out when an HR internal investigation must be conducted. The only reference to investigations in the Employment Act 2007 appears in Section 5(3), which mentions the disclosure of sexual harassment details in the context of an investigation.

There is no specific statutory provision that bars an HR internal investigation from being carried out.

Investigations are not mandatory in Kenyan law. The decision to conduct an investigation is at the employer’s discretion and should be guided by the burden of proof required under Section 43 of the Employment Act 2007. This section emphasises that an employer must have sufficient justification before taking any adverse action against an employee.

Some of the key considerations to take into account when making this decision are as follows.

• Seriousness of the allegations ‒ serious issues such as fraud, harassment, or gross misconduct often necessitate an investigation to establish the facts and provide a proper basis for subsequent action.
• Impact on the workplace – allegations that affect the organisation broadly or jeopardise staff safety and well-being (such as widespread harassment or bullying at senior levels) may require an investigation to address concerns and maintain trust with employees.
• Policy provisions – the organisation’s internal policies and industry best practices should guide the decision to conduct an investigation. Although not always legally required, best practices often recommend conducting an investigation in certain situations. By way of example, in sexual harassment cases, policies may mandate a preliminary inquiry as an essential first step when a complaint is filed.
• Fairness and due process – when disciplinary action against an employee is possible, an investigation may be necessary to establish the facts and give the employee an opportunity to address the allegations before a conclusion is reached. Although this is not required specifically in the Employment Act 2007, it speaks to the fairness of any process leading to disciplinary action and supplements the requirement to provide a hearing (as set out in Section 41 of the Employment Act 2007) prior to dismissal.
• Employer liability – conducting an investigation demonstrates that the organisation took reasonable steps to address the issue. By way of example, evidence from investigations can support insurance claims in fraud cases or limit liability in sexual harassment claims by showing reasonable employer action.
• Reputational risk – allegations with potential reputational harm or those in industries requiring high trust and transparency may warrant an investigation to demonstrate accountability and responsiveness.

Kenyan employment laws do not specifically require that a reporter be informed when an HR internal investigation begins. However, the relevant internal policies (eg, the sexual harassment or grievance policy) would typically outline the procedures for notifying the reporter.

It is considered best practice to inform the reporter of the investigation’s commencement and outcome so as to ensure the process starts and concludes appropriately and with their awareness. The information shared with the reporter should generally include:

• an acknowledgement of receipt of the report;
• the specific policy or guidelines that will be used to address the report;
• the steps to be taken in resolving the report;
• estimated timelines for resolving the report; and
• communication channels available during the process.

Providing this information promotes transparency and aligns with the principles of fairness and due process. It also reflects fair labour practices, which are constitutionally guaranteed under Article 41 of the Constitution of Kenya 2010 (see 1.2 Legal Bases).

Kenyan employment laws do not specifically require that a respondent be informed when an HR internal investigation begins. However, as with informing the reporter (see 2.1 Communication to the Reporter), the relevant internal policies – such as the sexual harassment or grievance policy – would typically outline the procedures for notifying the respondent.

It is considered best practice to inform the respondent of the details of any report made against them, as well as the investigation’s commencement and outcome. This ensures the process begins and concludes appropriately, with the respondent fully aware of the proceedings. This practice is particularly important when the investigation could result in adverse actions against the respondent (eg, interim measures such as suspension or eventual disciplinary action).

The information shared with the respondent should generally include:

• the details of the report (it may be necessary to withhold or redact some information – however, the respondent should be made aware of the substance of the report);
• the specific policy or guidelines that will be used to address the report;
• the steps to be taken in resolving the report;
• estimated timelines for resolving the report;
• communication channels available during the process; and
• any rights that the respondent has pursuant to company policy during the process, such as the right to respond or the right to be accompanied by a fellow employee.

Providing this information promotes transparency, aligns with the principles of fairness and due process, and reflects constitutionally guaranteed fair labour practices (see 1.2 Legal Bases).

In Kenyan law, there is no statutory requirement for employers to report the opening of an HR internal investigation to the authorities. However, there are best practices to consider and the decision to report to authorities is largely at the employer’s discretion, based on the nature of the situation and the practical realities involved.

In serious cases, such as safeguarding minors or vulnerable persons, employers should report any situation that may endanger a minor or vulnerable person to the National Police Service and/or the Directorate of Children’s Services. This allows the relevant authorities to take appropriate action in addition to any internal disciplinary measures that the employer may choose to take. Such reports are, however, typically made after the investigation has concluded.

Similarly, allegations of sexual harassment may be offences under the Sexual Offences Act. Although there is no legal obligation to report such cases to the authorities, it may be prudent to do so as part of the employer’s duty of care and in the interest of acting reasonably, once the facts have been established ‒ again, usually after the investigation.

In cases of fraud or theft, it is generally advisable to report the matter to the authorities, as these are criminal offences. However, reporting is not mandatory, and there are instances where employers opt for disciplinary action without making a police report.

Kenyan courts have also emphasised that the police process is separate from the employer’s disciplinary process, suggesting that reporting to the authorities is not compulsory. Once a report is made, the authorities act independently, and nothing prevents the employer from taking its own disciplinary actions or other steps deemed appropriate under the circumstances.

In Kenya, parties involved in an internal investigation can sign a confidentiality agreement or non-disclosure agreement (NDA) to safeguard the integrity of the process, protect sensitive information, and ensure fairness for all participants (particularly the reporter and the respondent). These agreements outline clear expectations for the individuals involved, such as the reporter, respondent, witnesses and investigators, as well as the investigation panel.

Given that NDAs are grounded in the principle of freedom to contract, they are enforceable as long as they are willingly executed by the parties. In the event of a breach, the employer can take appropriate action against the offending party based on the terms of the NDA.

Courts have upheld NDAs in employment settings, particularly when an employee misuses confidential information without authorisation. By way of example, in Anne Waceke Makori & Two Others v Faulu Microfinance Bank Limited (2021) eKLR, the Employment and Labour Relations Court addressed whether employees breached a confidentiality agreement by using confidential documents as evidence without the employer’s consent. The court observed: “[A]ll the foregoing documents and the information therein are not public but private and confidential. The claimants have not shown how else the said private documents came to their possession if not through interaction with the same during their course of employment. Even without the said express term barring them from use of confidential information during or after separation, the claimants herein had a contractual obligation to seek permission from the respondent before producing the same in court or otherwise [should have] sought discovery orders.”

Legal Limits to NDAs

Confidentiality agreements must include limitations, such as allowing disclosure of information that:

• is already in the public domain;
• becomes known through no fault of the disclosing party; and
• must be disclosed by operation of law, government regulation, or court order –provided the disclosing party gives reasonable notice to the other party.

General Duty of Confidentiality

Even in the absence of an NDA, there is an implied duty of confidentiality in employment relationships. This duty extends to information obtained during an internal investigation. Employers should clearly communicate this obligation to all parties involved in the investigation even when no NDA will be executed.

Recourse for Breach

If the parties do not keep the HR internal investigation confidential, recourse is available, as follows.

• If an NDA is in place – the employer can enforce the terms of the NDA, which should explicitly outline remedies for breaches.
• If no NDA exists – the employer can take disciplinary action (including termination) for breaching confidentiality. Section 44(4)(e) of the Employment Act 2007 provides that wilful refusal to comply with lawful instructions constitutes gross misconduct, warranting summary dismissal, and that his provides further justification for disciplinary action.

To mitigate risks, employers should ensure confidentiality obligations are clearly defined, whether through NDAs, contractual terms or internal policies communicated at the outset of the investigation.

A preliminary investigation can be conducted to assess whether a full HR internal investigation is necessary. As there are no statutory rules governing investigations, the approach taken will typically be determined by the organisation’s policies or at the organisation’s discretion.

The purpose of a preliminary inquiry or fact-finding exercise is to evaluate the credibility of the evidence and the seriousness of the allegation before proceeding with a full-scale investigation. As long as the organisation acts reasonably and can justify its decision, a preliminary investigation is lawful.

This process is aimed at gathering information and determining whether there is a reasonable basis to move forward with a more formal investigation. It is usually carried out by the People Team or a relevant manager who receives the initial report and collects the necessary information to make an informed decision. The steps may include:

• assessing the nature of the complaint;
• collecting initial statements from the reporter, the respondent, and any available witnesses; and
• reviewing relevant documents and evidence, if any.

This practice is common in many organisations to ensure that:

• only credible allegations proceed to full investigations; and
• baseless reports are addressed promptly.

In an HR internal investigation, the persons to be interviewed will depend largely on the nature of the investigation and the scope of the issues covered. Typically, the individuals to be interviewed would include the following.

• The reporter ‒ the individual who has raised a report/complaint would be interviewed in order to give their account of the incident, the specifics of the incident, and supporting evidence. They would also be able to identify witnesses.
• The respondent ‒ the person against whom a report/complaint has been made would also be interviewed to give their version of events and evidence supporting their position. They would also identity potential witnesses.
• Witnesses ‒ individuals identified as having observed anything relevant to the events in question would also be interviewed. These can be colleagues, supervisors or any other persons whose evidence may support or negate the report in question.
• Any other persons ‒ depending on the nature of investigations there may be other parties who will be interviewed as part of the investigations (eg, HR personnel, managers, or external parties such as auditors in complex fraud investigations).

The witness count would largely depend on the complexity and the scope of investigations. The important thing is that any witness with relevant information should be interviewed as part of the investigation process.

If an interviewee refuses to participate in an investigation or only engages selectively, the employer should document the refusal and proceed with the investigation to its conclusion, drawing inferences based on the evidence available. If company policies or the employee’s contract of employment require participation in investigations, the refusal may constitute grounds for disciplinary action.

When an interviewee declines to participate, they forfeit the opportunity to challenge any adverse findings. The employer is justified in making such findings, provided efforts to secure the interviewee’s co-operation are well documented and the individual was made aware of the potential for adverse conclusions resulting from their refusal.

If the individual refusing to cooperate is the complainant, the respondent, or a key witness, their refusal may significantly impact the investigation’s integrity. In such cases, the refusal could further justify disciplinary action by the employer.

In Kenya, online or remote tools such as Microsoft Teams and Zoom are acceptable platforms for conducting interviews.

Kenyan employment law does not prescribe specific rules regarding the composition of an investigation panel. The constitution of the panel is typically guided by the organisation’s internal policies on the investigative process and is therefore at the employer’s discretion.

The panel should consist of impartial individuals to ensure the integrity of the investigation. Although not mandatory, it is advisable to include members with sufficient authority and expertise, such as HR professionals or senior management.

In matters involving sensitive issues such as harassment, diverse representation on the panel may be important to avoid any perception of bias. The primary objective is to ensure the investigation is conducted in a fair, impartial and objective manner; as such, this should guide the panel’s composition.

Given that there are no statutory requirements governing the conduct of HR internal investigations in Kenya, the decision to have a neutral third-party present as a witness is at the employer’s discretion. This may be appropriate in particularly sensitive cases to ensure that the investigation is conducted procedurally and fairly.

There is no statutory requirement that an interviewee be accompanied during an internal investigation. However, this is a practice that has come up based on Section 41 of the Employment Act 2007, which grants an employee undergoing disciplinary proceedings the right to be accompanied by another employee of their choice or a union representative in cases that may lead to termination.

Although it is not an interviewee right, this allowance can be extended, particularly to the respondent. However, the support person must be an internal party – specifically, another employee of their choice, given that the investigation is an internal process.

An HR internal investigation is an internal organisational process and external parties, such as lawyers, are generally not permitted to participate. Consequently, an interviewee does not have the right to attend with their lawyer.

This is not an absolute rule. The employer may exercise discretion to allow an interviewee ‒ particularly an accused employee ‒ to be accompanied by a lawyer in exceptional circumstances. Such decisions should be made on a case-by-case basis, taking into account the specific nature and sensitivity of the investigation.

The interviewer should provide key information to the interviewee at the beginning and end of the interview to ensure clarity and procedural integrity.

At the start of the interview, the interviewer must communicate the following to the interviewee.

• Purpose ‒ the interviewer should clearly explain the purpose of the interview, the nature of the investigation, the allegations, and the issues to be reviewed.
• Confidentiality ‒ the interviewer should emphasise the importance of confidentiality in preserving the integrity of the investigation and protecting the rights of all parties. Potential consequences for breaching confidentiality should be highlighted.
• Interviewee’s rights ‒ the interviewer should outline the interviewee’s rights, such as the ability to present evidence, respond to issues, or request a break. If organisational policy allows the interviewee to be accompanied, it is important to confirm whether or not the interviewee wishes to have a support person present.
• Consent ‒ the interviewer must obtain the interviewee’s consent to record the interview, if applicable, and explain how the interview will be documented and how the records will be used in the investigation.

At the end of the interview, the interviewer must communicate the following to the interviewee.

• Clarifications ‒ the interviewer must provide the interviewee with an opportunity to ask additional questions or clarify their statements.
• Next steps ‒ the interviewer must inform the interviewee of the next steps in the investigation process and any relevant timelines.
• Confidentiality ‒ the interviewer must remind the interviewee of the need to maintain confidentiality.
• Contact information ‒ the interviewer must provide the interviewee with contact details in case the interviewee wishes to raise further issues or submit additional information.

The interview panel should carefully evaluate a request to stop an interview and decide whether to allow an adjournment. Although such requests should not be unreasonably denied, as this may prejudice the interviewee, the organisation’s need to conduct and conclude a thorough investigation must also be considered.

The key considerations to be taken into account in deciding whether or not to allow an adjournment are as follows.

• Reason for the request ‒ the interviewer should ask for and document the reason for the request to stop the interview. Common acceptable reasons include needing a short break, consulting a union representative or legal advisor, or feeling unwell.
• Breaks ‒ if the request is reasonable (such as asking for a short break), it should generally be accommodated, with the interview resuming afterwards.
• Policy guidance ‒ if the organisation’s policies address such requests, these should be referred to when deciding whether or not to grant the adjournment.
• Complete refusal ‒ if the interviewee refuses to proceed entirely, the interviewer should document the refusal and inform the interviewee of the potential consequences of non-cooperation.

Such requests and the actions taken should be managed carefully and documented thoroughly to preserve the integrity of the investigation, especially if the process is later scrutinised.

Minutes should always be taken as they serve as the official written record of the meeting and what was discussed. This includes documenting the interviewee’s responses and other relevant details, ensuring there is an accurate record that can be referred to later.

Minutes should be a summary of the meeting’s discussions and summarised minutes are permissible. However, they must still be sufficiently detailed, capturing the essential elements of the interview – especially the interviewee’s responses.

There is no requirement for an external party to take the minutes. The minutes can be taken by anyone present at the meeting, provided they are impartial.

Interviewees are not typically entitled to review or sign the minutes – although provisions may be made for accuracy checks if necessary. The key focus should be on maintaining the integrity and confidentiality of the investigation.

Interviews may be recorded to preserve an accurate record of the meeting and ensure accountability. A transcript of the recording can also be produced; however, it should typically be retained as an internal and confidential document of the employer and shared only with authorised parties involved in the investigation. Disclosure beyond these parties should generally be limited, unless explicitly requested and agreed upon by the organisation.

As mentioned in 3.8 Information, before recording, the interviewee’s consent must be obtained. The purpose of the recording, as well as its intended use, should be clearly explained to them.

There are other fact-finding methods that can be utilised. However, none are mandatory, as there is no statutory underpinning for conducting an investigation in Kenyan employment law.

Other types of fact-finding can include:

• document reviews ‒ examination of documentary evidence such as employment records, emails, policies and reports in order to identify relevant evidence;
• site visits/inspection ‒ physically visiting a location when investigating, for example, workplace conditions or safety reports; and
• digital evidence reviews ‒ analysing electronic data such as emails, messages, files and systems logs in order to identify relevant evidence.

Any fact-finding that would be in contravention of the law or in violation of an individual’s rights would be considered illegal and should not be used. Examples of such methods include:

• unlawful surveillance or monitoring ‒ this involves conduct such as recording employees without their knowledge or consent;
• intimidation ‒ using threats, harassment or undue pressure in order to get information; and
• breach of confidentiality ‒ unauthorised access to private and unrelated personal information.

In Kenya, there is no statutory requirement explicitly mandating that an employer take action to protect a reporter. However, a reasonable employer is expected to do so in light of the reporter’s right to fair labour practices guaranteed under Article 41 of the Constitution of Kenya 2010 (see 1.2 Legal Bases). Additionally, employers have a general duty of care to safeguard employees ‒ particularly those who report workplace issues ‒ by ensuring their safety and well-being.

Legal Basis for Action

Under the Constitution of Kenya 2010, the legal foundation for protective measures includes:

• Article 27 ‒ guarantees equal protection under the law;
• Article 28 ‒ protects the right to human dignity;
• Article 29 ‒ ensures freedom and security of the person, including protection from any form of torture or harm; and
• Article 41 ‒ guarantees the right to fair labour practices.

Measures Employers May Take to Protect Reporters

To protect the reporter and ensure the respondent does not interfere with investigations, an employer may consider the following actions:

• suspension ‒ temporarily suspending the respondent to protect the reporter and witnesses from physical or psychological harm;
• reassignment ‒ assigning the respondent to another location or station to eliminate interactions with the reporter or witnesses;
• remote work ‒ allowing the respondent to work remotely so as to minimise workplace interactions with the reporter;
• confidentiality ‒ withholding the reporter’s identity from the respondent and other parties for as long as practicable in order to prevent retaliation;
• physical security ‒ implementing enhanced workplace security measures, including specific protections for the reporter; and
• counselling services ‒ providing access to counselling services for the reporter in order to support their well-being.

Consequences of Failing to Protect Reporters

Failure to protect the reporter may lead to:

• breach of legal duty ‒ claims of unfair termination, constructive dismissal, or constitutional rights violations;
• liability ‒ the employer may face legal liability and be required to pay damages for failing to act; and
• reputational damage ‒ public exposure of the issue could harm the organisation’s reputation.

Potential Adverse Consequences of Protective Measures

Even though taking protective action is generally justified, adverse consequences may arise if such measures are abused or are applied arbitrarily without a valid basis. Courts typically avoid interfering with an employer’s internal disciplinary processes unless it is evident that the process contravenes the law or violates the principles of justice and fairness.

Employers must ensure that protective actions are proportionate, justified, and conducted with transparency to balance the rights of all parties involved.

In Kenya, there is no statutory requirement explicitly mandating that an employer take action to protect a respondent. However, as with protecting the reporter, a reasonable employer is expected to do so in light of the respondent’s right to fair labour practices guaranteed under Article 41 of the Constitution of Kenya 2010 (see 1.2 Legal Bases). Additionally, employers have a general duty of care to safeguard employees (see 4.1 Protection of the Reporter) – even the respondent, whose reputation and employment should be protected unless the investigation can establish the issues in question.

Legal Basis for Action

The legal foundation for protective measures is outlined in 4.1 Protection of the Reporter (Legal Basis for Action).

Measures Employers May Take to Protect Respondents

To protect the reputation, rights and well-being of the respondent during the investigation, an employer may consider the following actions:

• confidentiality notice ‒ implement confidentiality clauses to limit the disclosure of information related to the allegations, investigations or disciplinary process;
• limited information sharing ‒ avoid making public or internal communications regarding the issue;
• opportunity to respond ‒ the respondent should be availed every available opportunity to respond in addition to the statutory requirement to respond during the disciplinary process; and
• counselling services ‒ support by way of counselling services can be availed to the respondent to assist them in dealing with the experience.

Consequences of Failing to Protect Respondents

Failure to protect the respondent may lead to:

• breach of legal duty ‒ claims of unfair termination, defamation, or constitutional rights violations may be brought if there is no justification for the respondent’s reputational damage;
• unfair disciplinary process ‒ the employer may face legal liability on account of procedural unfairness of the process; and
• reputational damage ‒ mishandling the process could harm the organisation’s reputation.

Potential Adverse Consequences of Protective Measures

There might be a perception of bias where the respondent’s protection is over-emphasised, as this can be viewed as being insensitive to the reporter or the situation at hand. Protecting the respondent excessively could also hinder the thoroughness and transparency of the process and, as a consequence, potentially compromise the investigation.

Employers must carefully balance the rights of both the reporter and the respondent. Protective measures for the respondent should not interfere with the integrity of the investigation or the fair treatment of the reporter. Ensuring transparency, proportionality, and adherence to due process principles is essential to minimise risks to all parties involved.

An employer should refrain from taking disciplinary action against the respondent until the HR internal investigation is complete. Taking such action prematurely may be deemed pre-emptive and unjustified, as it would lack a foundation of concrete evidence or conclusions from the investigation.

Disciplinary action should only be taken if it pertains to a separate and unrelated infraction. By way of example, if the employee commits an independent disciplinary violation that warrants action, the employer may address that issue separately from the ongoing investigation.

There is no statutory requirement explicitly mandating an employer to take protective measures for other employees during a workplace investigation. However, a reasonable employer is expected to ensure the safety and well-being of all employees – particularly those who might be affected directly or indirectly by an investigation – in light of the right to fair labour practices guaranteed to employees under Article 41 of the Constitution of Kenya 2010 (see 1.2 Legal Bases).

Legal Basis for Action

The legal foundation for protective measures is outlined in 4.1 Protection of the Reporter (Legal Basis for Action).

Measures Employers May Take to Protect Other Employees

To protect other employees of the organisation, an employer may consider the following actions:

• suspension ‒ temporarily suspending the respondent to protect other employees from physical or psychological harm;
• reassignment ‒ assigning the respondent to another location or station to eliminate interactions with other employees;
• remote work ‒ allowing the respondent to work remotely to minimise workplace interactions with other employees;
• confidentiality ‒ withholding the reporter’s and respondent’s identity as well as the fact of and details of investigations from other employees for as long as practicable in order to prevent retaliation;
• physical security ‒ implementing enhanced workplace security measures; and
• counselling services ‒ providing access to counselling services for employees in order to support their well-being, where necessary.

Consequences of Failing to Protect Other Employees

Failure to protect the organisation’s other employees may lead to:

• breach of legal duty ‒ claims of unfair termination, constructive dismissal, or constitutional rights violations;
• liability ‒ the employer may face legal liability and be required to pay damages for failing to act;
• reputational damage ‒ public exposure of the issue could harm the organisation’s reputation; and
• workplace safety risks ‒ failing to protect employees can create an unsafe or hostile work environment for employees.

Potential Adverse Consequences of Protective Measures

The potential adverse consequences of measures taken by employers to protect employees are outlined in 4.1 Protection of the Reporter (Potential Adverse Consequences of Protective Measures). Employers must ensure that protective actions are proportionate, justified, and conducted with transparency to balance the rights of all employees and in the interest of maintaining workplace harmony.

There are no specific procedural requirements set out in Kenyan employment law with regard to the conduct of internal investigations. However, the steps followed in an investigation should align with best practices and respect employees’ rights.

Any mandatory procedural steps would typically be outlined in the organisation’s internal policies. If the company has established procedures for conducting investigations, these must be followed, as failure to do so could result in the court declaring the investigation process flawed and in violation of internal policies.

If the recommended best practices are not followed, the employer risks the investigation being deemed unfair. This could lead to legal liability for the employer.

As there are no statutory requirements for the investigation process in Kenya, the employer should come up with internal regulations that would inform the processes involved in conducting an HR internal investigation. The employer has wide discretion to determine on its own the process it will adopt in conducting internal investigations with the only caveat being that these processes should not contradict or undermine the employees guaranteed constitutional rights (as outlined in 1.2 Legal Bases).

Any internal regulations that an employer develops would be binding on the parties, as it is considered in law that organisational policies and regulations form part of the terms of employment contract. Once communicated to employees, these organisational policies and regulations create an obligation for the employer to follow them.

If an employer fails to follow its own internal regulations, the consequences could include the following.

• Unfair process ‒ if an internal regulation is part of the established process and the employer does not adhere to it, the investigation could be deemed procedurally unfair. This could result in legal challenges, including claims for constructive dismissal or unfair dismissal.
• Breach of contract ‒ non-compliance with internal policies may be viewed as a breach of the terms of the employment contract. This could expose the employer to claims for damages by the employee.

Where internal regulations exist, the employer must ensure that they are consistently followed. Any deviation must be justified and well documented.

In an HR internal investigation, the concept of burden of proof does not operate in the same way as it does in a court of law, whereby one party must prove its case to a specific standard. Instead, the general principles of fairness and due process apply, requiring each party to substantiate their claims or defences with evidence.

The employer holds the primary responsibility for conducting a thorough and impartial investigation, aimed at gathering sufficient evidence to reach a reasonable conclusion that will support further steps. In this context, the employer effectively bears the burden of proof, meaning that any conclusions drawn from the investigation must be supported by evidence. This substantiated evidence will form the basis for any subsequent actions the employer may take.

The standard of proof in an internal investigation is based on a preponderance of the evidence. This means that the evidence must show that it is more likely than not that the alleged conduct or issue occurred. This standard aligns with Section 43(2) of the Employment Act 2007, which states that the reasons for terminating an employee’s contract are those that the employer genuinely believed to exist at the time of termination and which led to the decision to terminate the employee’s services.

There are no specific rules governing when an HR internal investigation must be ended. This is generally at the discretion of the employer.

However, some general considerations that should be taken into account in deciding whether to conclude the investigation are as follows.

• Evidence collection ‒ the investigation should conclude once all relevant evidence has been gathered and reviewed and a conclusion has been reached.
• Reasonable timeframe ‒ although no legal time limit exists, an investigation should not be unnecessarily prolonged or delayed without valid reasons, as this could be considered unfair treatment.
• Internal policy ‒ if the organisation has an internal policy outlining the duration of investigations, the employer must adhere to these guidelines.

Kenyan law does not mandate specific procedures once a decision to end an HR internal investigation has been reached. However, best practices suggest the following steps should be taken.

• Documenting the outcome ‒ a report should be prepared detailing the investigation process and the conclusions reached.
• Communication to parties ‒ both the complainant and the respondent should be informed of the investigation’s outcome, including the findings.
• Implementation ‒ if the investigation includes recommendations, these should be implemented as appropriate once the investigation is concluded.

The procedures do not vary depending on the investigation’s outcome. If disciplinary action or other measures follow, they are considered separate processes. The investigation phase must be formally closed – following which, any necessary actions can be taken.

In Kenya, there are no specific rules governing the format of an investigation’s conclusion. Typically, the investigation is closed with a report that outlines the process followed, the factors considered, and the conclusions reached.

There are no mandatory requirements for the content of a written report following the conclusion of an HR internal investigation. However, a typical report would include the following sections:

• introduction ‒ an overview of the investigation, including its purpose, scope, and the parties involved;
• methodology ‒ a description of how the investigation was conducted, detailing methods such as interviews, document reviews, site visits, the investigation timeline, and relevant policies or procedures followed;
• findings and analysis ‒ a presentation of the facts uncovered during the investigation, the evidence considered, and its relevance to the issues under investigation;
• conclusions ‒ a determination of whether the allegations have been substantiated, including an analysis of the evidence in relation to the claims made;
• supporting documents – includes copies of documents and witness statements referred to in the report; and
• recommendations (optional) ‒ albeit not mandatory, it is common for the investigation panel to offer suggestions for next steps, which may include disciplinary action, policy changes, or training.

The primary focus of the report is to determine whether the allegations are substantiated. All information included should be relevant to this conclusion.

There is no legal requirement for any party outside the organisation’s management to receive an investigation report. However, best practice dictates that the respondent should be provided with the report, particularly when it leads to disciplinary action. This is because the report forms the basis for the disciplinary decision and constitutes material evidence essential for the respondent’s defence.

The reporter may be informed of the investigation’s findings but is generally not entitled to the full report, owing to its confidential nature. Similarly, third parties do not have the right to access investigation reports unless there is a compelling reason to disclose them.

In practice, when an investigation leads to disciplinary proceedings against the respondent, the report is typically shared during the disciplinary process to ensure the respondent is fully informed of the charges and can prepare their defence appropriately. The reporter, on the other hand, may receive a summary of the findings and next steps. The goal is to inform them whether the report substantiates their complaint and outline any subsequent actions, assuming they have no further involvement in the process.

Under Kenyan law, there is no statutory requirement to report the conclusions of an HR internal investigation to the authorities. However, there are best practice considerations and prudential factors that may guide the decision to report such conclusions.

In cases of serious misconduct involving criminal activity, it may be prudent to report the conduct to the National Police Service for further investigation and appropriate action, in addition to any internal disciplinary measures taken by the organisation. This is particularly important in sensitive situations such as the safeguarding of minors and vulnerable groups, as well as in cases of sexual harassment. Similarly, conclusions regarding fraud or theft should be reported to the National Police Service, as these are criminal offences that may warrant prosecution, in addition to any disciplinary action taken by the employer.

When reporting to the authorities, the information shared should include the investigation report and any evidence that supports the conclusions drawn by the employer. This information will assist the authorities in their own investigations.

Reporting the conclusions of an investigation may also be required for purposes such as filing an insurance claim or initiating a civil claim for damages. In such cases, it may be necessary to provide the relevant authorities with the conclusions of the investigation in order to support the claim.

Typically, information from an HR internal investigation should not be shared with unrelated parties, so as to maintain the confidentiality of the process. However, this is not a strict rule, and there may be situations where communication is necessary. By way of example, if widespread issues are identified that need to be addressed with an entire team or if recommended interventions require team members to be informed, sharing certain information may be appropriate. In such cases, the information shared should be limited to what is necessary for the specific purpose at hand.

If the allegations are substantiated following an HR internal investigation, the employer may take a range of disciplinary actions depending on the severity of the misconduct, the organisation’s policies, and the provisions of the Employment Act 2007.

The types of disciplinary actions that may be considered include:

• warnings;
• termination of employment;
• summary dismissal;
• demotion; and
• suspension.

Disciplinary action must be taken in accordance with the requirements of the Employment Act 2007 and must be a separate process from the investigation itself. The timing of dismissal is not a determining factor, as there is a specific process that must be followed for termination of employment based on disciplinary action.

In Kenya, employers can implement any other measures independently or in addition to disciplinary action. These may include team workshops, staff training, counselling services, and similar initiatives that are commonly utilised.

An employer is permitted to collect personal data for the purposes of an HR internal investigation in Kenya. Section 30 of the Data Protection Act permits the processing of personal data under various exceptions that would be relevant to an investigation, such as:

• for the performance of a contract to which the data subject is a party – meaning that processing for purposes of the employment contract would be permitted; and
• for compliance with any legal obligation to which the controller is subject – meaning that collection and processing can be permitted pursuant to the employer’s duty to guarantee the right to fair labour practices.

The only limitation to such data would be that it should only be used for the specific purpose for which it has been collected – namely, the HR internal investigation. Additionally, data collected and processed should only be relevant to the HR internal investigation, as these exceptions do not represent a carte blanche to collect all personal data.

Under Kenyan law, personal data must be processed in compliance with the fundamental principles of data protection. These principles, as provided under the Data Protection Act 2019, obligate every data controller and processor to ensure that:

• personal data is handled in a manner that upholds the data subject’s right to privacy;
• processing of personal data is conducted lawfully, fairly and transparently;
• data is collected for explicit and legitimate purposes and is not subsequently processed in ways incompatible with those purposes;
• the data collected is adequate, relevant, and limited to what is necessary for the specified purpose;
• when information about family or private matters is required, valid justification must be provided for its collection;
• data accuracy is maintained, and reasonable steps are taken to rectify or delete any inaccuracies without delay;
• data is stored in an identifiable format only for as long as is necessary to fulfil the purpose for which it was collected.

Certain parties involved in an HR internal investigation may have the right to access personal data, as follows.

• The data subject – the individual whose personal data has been collected during the investigation has the right to access their own personal data.
• The investigation panel and relevant parties – members of the investigation panel, HR personnel, and legal advisers involved in the process may access personal data collected during the investigation. However, their access should be strictly limited to information necessary for fulfilling their roles in the investigation. Only data relevant and useful to the process should be shared.

Restrictions on access to personal data may be imposed in order to:

• protect the confidentiality of data subjects;
• safeguard ongoing investigations;
• prevent harm to the safety and well-being of data subjects that could result from the disclosure of their personal data; and
• compliance with the Data Protection Act 2019.

Kenya’s current employment and labour laws do not provide specific protections for whistle-blowers.

Kenya’s current employment and labour laws do not provide specific protections for allegations concerning sexual harassment. However, the Employment Act 2007 does provide a definition sexual harassment.

According to Section 6(1) of the Employment Act 2007, an employee is sexually harassed if their co-worker or their employer (or a representative of that employer):

• directly or indirectly asks that employee for sexual intercourse, sexual contact or any other form of sexual activity and such request contains an implied or express:
1. promise of preferential treatment in employment;
2. threat of detrimental treatment in employment; or
3. threat to the present or future employment status of the employee;
• uses language – whether written or spoken – of a sexual nature;
• uses visual material of a sexual nature; or
• demonstrates physical behaviour of a sexual nature, which directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee and that by its nature has a detrimental effect on that employee’s employment, job performance, or job satisfaction.

Kenyan employment and labour laws do not provide specific protections for allegations of discrimination or harassment. However, Section 5 of the Employment Act 2007 addresses discrimination by imposing a duty on all employers to promote equal opportunity and eliminate discrimination in the workplace.

Section 5(3) of the Employment Act 2007 identifies protected characteristics, which include race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status. Further, Section 5(6) of the Employment Act 2007 makes discrimination an offence, and Section 5(7) shifts the burden of proof to the employer in cases where discrimination is alleged.

Kenya’s current employment and labour laws do not provide specific protections for allegations concerning bullying.

There are no specific procedures outlined in Kenyan law that an employer must follow if the allegation is criminal in nature. If criminal charges are filed, the internal procedures of the employer remain unchanged, as courts have consistently held that the criminal process is separate from the employer’s internal processes.

There are no special procedures for multi-jurisdictional investigations. If an employer has a presence in Kenya, they are considered an employer with legal status in Kenya and must comply with Kenyan laws.

When conducting multi-jurisdictional investigations, employers must primarily ensure compliance with local laws. This includes data protection laws, which may have specific requirements for handling personal data in different jurisdictions.

If an investigation is being conducted pursuant to a judicial order from a foreign court, the employer may need assistance from Kenyan courts before proceeding with the investigation in Kenya. Employers should also be mindful of potential conflicts between the laws of different jurisdictions, especially when local laws impose stricter requirements (eg, disciplinary actions) than those of other jurisdictions.