Remote work has become a permanent feature of Kenya's employment landscape. While the Employment Act, 2007 does not contain a standalone remote-work statute, all existing employment protections apply equally to remote employees. This creates a unique challenge: how do you identify, document, and address poor performance when you cannot observe work in person?
2. The Legal Foundation
2.1 No Separate Remote Work Law
Kenya has no dedicated remote-work legislation. Remote employees are governed by:
Employment Act, 2007 (Cap. 226): contracts, termination, disciplinary procedures
Constitution of Kenya, 2010 (Article 41): right to fair labour practices
Data Protection Act, 2019: monitoring and surveillance of remote workers
Occupational Safety and Health Act, 2007: employer's duty of care extends to the remote workstation
Employment contract and remote work policy/agreement: the primary document defining expectations
2.2 Key Principle: Same Standards, Same Protections
The ELRC applies the same substantive and procedural fairness tests to remote employees. Working from home does not lower the threshold for lawful termination, nor does it excuse the employer from following due process.
3. Remote Work Agreements
Before performance issues can be fairly managed, clear expectations must be established. A robust remote work agreement should address:
Element | What to Include |
Place of work | Designated remote location (Section 10, Employment Act requires this) |
Working hours & availability | Core hours, response-time expectations, time-zone alignment |
Performance metrics | KPIs, deliverables, output-based targets (not hours logged) |
Communication protocols | Mandatory check-ins, reporting frequency, platforms to be used |
Equipment & connectivity | Who provides what; minimum internet standards |
Monitoring & data protection | What is tracked (e.g. project management tools, time trackers), consent requirements under the Data Protection Act |
Review & amendment | How often the arrangement is reviewed; right to revoke remote privileges |
4. Identifying Performance Issues in a Remote Setting
Remote work masks problems that are visible in an office. Common indicators include:
Missed deadlines consistently without adequate explanation
Declining quality of output (errors, incomplete work, superficial deliverables)
Communication failures: unresponsive during core hours, missing meetings, delayed replies beyond agreed timelines
Low engagement: camera-off, minimal participation, disengagement from team collaboration
Failure to meet measurable KPIs (sales targets, tickets resolved, reports submitted, etc.)
Client or colleague complaints about responsiveness or quality
5. The Performance Management Process (Step by Step)
Kenyan courts, particularly in the landmark cases of Jane Samba Mukala v Ol Tukai Lodge Limited [2013] and Vincent Namai v National Bank of Kenya [2023], have outlined a clear sequence that employers must follow. This applies equally to remote employees:
Step 1: Identify and Document the Gap
Compare actual performance against documented KPIs, targets, or job description requirements.
Collect objective evidence: missed deadlines, error rates, client feedback, system logs, project management data.
For remote workers, digital evidence is critical: emails, task completion records, time-stamp data, meeting attendance logs.
Step 2: Informal Discussion (Verbal Counselling)
Hold a one-on-one conversation (video call is acceptable) to discuss the performance gap.
Explore root causes: is it a skills issue, workload issue, personal circumstance, or lack of resources/connectivity?
Document the discussion with a written follow-up email summarising what was discussed and agreed.
Remote-specific consideration: Ensure the employee has adequate tools, internet connectivity, and a suitable workspace. If the employer has not provided these, the performance gap may not be the employee's fault.
Step 3: Formal Written Warning
If performance does not improve after informal discussion:
Issue a written warning specifying:
The exact areas of underperformance (with evidence)
The expected standard
The timeframe for improvement
The support the employer will provide
The consequences of continued underperformance
Serve the warning via email and follow up with a hard copy where possible.
The warning should reference the employee's right to respond.
Step 4: Performance Improvement Plan (PIP)
The PIP is now considered essential by Kenyan courts before any termination for poor performance. Based on Mukala v Ol Tukai and subsequent ELRC jurisprudence, a valid PIP must include:
PIP Element | Requirement |
Specific targets | Clearly defined, measurable goals tied to the role |
Timeline | Reasonable duration (typically 30 to 90 days depending on the role) |
Support measures | Training, coaching, mentorship, additional resources, adjusted workload |
Regular check-ins | Scheduled review meetings (weekly or bi-weekly) |
Documentation | Written records of each review meeting and the employee's progress |
Clear consequences | Statement that failure to meet targets may result in further action, including termination |
Remote-Specific PIP Considerations:
Use output-based metrics, not activity monitoring. Courts are likely to view invasive surveillance unfavourably.
Schedule check-ins via video call at consistent times. Record attendance and discussion points.
Provide digital tools to track progress transparently (shared dashboards, project boards, shared documents).
Account for connectivity challenges: if the employee is in a region with unreliable internet, build this into expectations.
Get written acknowledgement of the PIP from the employee (email confirmation or digital signature is sufficient).
Step 5: PIP Review and Decision
At the end of the PIP period:
Assess performance against the documented targets.
If improved: document the improvement, continue monitoring, and close the PIP.
If partially improved: consider extending the PIP with adjusted targets.
If not improved: proceed to the disciplinary/termination process.
6. The Disciplinary Hearing (Section 41, Employment Act)
If the PIP fails and the employer considers termination, the following process must be followed:
Written notice to the employee of the hearing, specifying:
The allegations of continued poor performance
The date, time, and format of the hearing (video call is acceptable for remote employees)
The employee's right to be accompanied by a fellow employee or union representative
Sufficient time to prepare a response (at least 48 hours; best practice is 5 working days)
Conduct the hearing fairly:
Present the evidence of poor performance (PIP records, appraisals, KPI data)
Allow the employee to respond fully
Consider any mitigating factors raised
For remote hearings: ensure a stable connection, record the session (with consent), and provide a written summary afterwards
Make a decision and communicate it in writing:
If termination: state clear reasons referencing the performance history
Provide the notice period (or payment in lieu)
Calculate and pay all terminal dues promptly
Can a Disciplinary Hearing Be Held Virtually?
Yes. There is no legal requirement for physical presence. However, employers should:
Ensure the employee has access to the technology
Offer an alternative if the employee faces connectivity issues
Record the session (with consent) for evidentiary purposes
Provide written minutes or a transcript
7. Monitoring Remote Employees: Legal Boundaries
The Data Protection Act, 2019 and the Office of the Data Protection Commissioner (ODPC) guidance impose limits on employee monitoring:
Permitted | Problematic |
Tracking task/project completion | Continuous screenshot capture without consent |
Monitoring login/logout times for core hours | Keystroke logging or webcam surveillance |
Reviewing work output and quality | Accessing personal files or communications |
Email monitoring (with policy disclosure) | Covert monitoring without notice |
GPS tracking for field roles (with consent) | Location tracking for desk-based remote workers |
8. Special Considerations for Remote Workers
Mental Health and Isolation
Remote work can bring mental health challenges. Before attributing performance decline to negligence, consider whether the employee is struggling with isolation, burnout, or mental health issues. The duty of care extends to psychological wellbeing.
Time Zones and Cross-Border Issues
If the remote employee is in a different time zone (e.g. a Kenyan employee working for a Nairobi-headquartered company while based in the diaspora), performance expectations must account for reasonable working hours under Kenyan law (maximum 52 hours per week).
Right to Disconnect
While Kenya has no explicit "right to disconnect" law, excessive after-hours expectations could be challenged under general fairness principles. Performance standards should not require 24/7 availability.
Probationary Remote Employees
Probation periods (maximum 12 months under the Employment Act) apply equally to remote hires. Performance evaluation during probation must still follow fair process, though the notice period is shorter (7 days).
9. Building a Remote Performance Culture (Prevention)
The best performance management strategy is one you rarely need to use formally:
Set clear, measurable expectations from day one (output-based, not presence-based).
Hold regular one-on-ones (weekly 30-minute video check-ins).
Use collaborative tools that create natural visibility into work progress.
Provide feedback continuously, not just annually.
Invest in onboarding for remote hires: the first 90 days determine trajectory.
Train managers on remote leadership: managing by outcomes, not observation.
Document everything as a matter of routine, not just when things go wrong.
Conclusion
Managing performance issues for remote Kenyan employees requires the same legal rigour as managing in-office staff. The ELRC does not lower the bar for remote terminations. If anything, the evidential burden on employers is higher because they must demonstrate that the employee had the tools, support, and clarity needed to succeed from a distance. Document relentlessly, support genuinely, and follow the process.