A recent decision by the Employment and Labour Relations Court in Akala v Kenya Commercial Bank Limited [2025] eKLR has provided important guidance for employers on the handling of investigation reports in disciplinary processes. The court held that where an investigation report forms the basis of disciplinary action, employers are under a legal obligation to provide the affected employee with the full report, not merely selected excerpts, well in advance of any disciplinary hearing. Selective or partial disclosure was found to undermine the employee’s right to a fair hearing and renders the process procedurally unfair.
This judgment emphasises that procedural fairness, as required by the Constitution of Kenya and the Employment Act, demands transparency in the disciplinary process. Employers must ensure that employees are given a genuine opportunity to understand and respond to the allegations against them, which includes timely access to all relevant documentation. The only exception to full disclosure is the redaction of whistleblower details to protect their identity. Therefore, failure to provide the complete investigation report, without proper justification, is likely to result in a finding of unfair termination and expose the employer to significant liability.
Background to the case
Roy Akala (the Claimant) was employed as the Director of Operations Management by Kenya Commercial Bank Limited (the Employer). In September 2018, he was suspended following the findings of a forensic audit report relating to alleged fraudulent card operations within his department. He was subsequently summarily dismissed, with the Employer relying on the audit report as the basis for the disciplinary action.
The Claimant challenged his dismissal, arguing that he had not been provided with the full forensic audit report, but only with selected excerpts of it. He further contended that he was not given a fair opportunity to respond to the allegations, nor was he informed of his right to be accompanied by a representative at the disciplinary hearing.
The court’s findings
The court found in favour of the Claimant holding that both the procedural and substantive requirements for a fair disciplinary process had not been met. The key findings were as follows:
- Full disclosure required: The court was clear that where an investigation report is central to the disciplinary process, the employer must provide the employee with the full report in good time before the hearing. Selective disclosure such as providing only excerpts or summaries was found to undermine an employee’s right to be heard and to prepare a meaningful defence.
- Procedural fairness: The court emphasised that procedural fairness under Section 41 of the Employment Act is mandatory. This includes informing the employee of the allegations, providing all relevant evidence and allowing the employee to be accompanied by a representative. In this case, the failure to provide the full audit report rendered the process fundamentally flawed.
- Substantive fairness: The court also found that the forensic audit report did not specifically implicate the Claimant or recommend disciplinary action against him. The employer failed to demonstrate that it had reasonable and justified grounds for the termination.
Key takeaways for employers
This decision provides clear and practical guidance for employers undertaking internal investigations and disciplinary proceedings:
- Full and timely disclosure: Where an investigation report forms the basis of disciplinary action, the entire report must be disclosed to the employee in advance of the hearing. Extracts or summaries are insufficient.
- Exception for whistleblower protection: The only recognised exception is the redaction of information that could identify whistleblowers, in order to protect them from retaliation or other adverse consequences.
- Procedural safeguards: Employers must ensure that employees are informed of their right to be accompanied at disciplinary hearings and are given a genuine opportunity to respond to all allegations and evidence.
- Substantive fairness: Employers must ensure that disciplinary actions, including termination, are based on clear, specific and substantiated evidence. Courts will closely scrutinize the evidence presented to determine whether an employee is actually implicated. An inconclusive report that does not specifically identify wrongdoing by the employee may be deemed insufficient to justify termination.
- Consequences of non-compliance: Failure to comply with these requirements is likely to result in a finding of unfair termination, with the employer being liable for compensation and costs.
Practical implications
Employers should review their internal disciplinary procedures and ensure that investigation reports are handled in accordance with the principles set out in this judgment. This includes:
- Establishing clear protocols for the disclosure of investigation reports to employees facing disciplinary action;
- Training human resources and management teams on the requirements of procedural fairness; and
- Ensuring that any redactions to investigation reports are limited strictly to information necessary to protect whistleblowers.
For further advice on managing internal investigations and disciplinary processes, or for assistance in reviewing your organisation’s procedures, please contact our team.
