One of the most dangerous assumptions in employment management is the belief that probation is informal. It often begins with a familiar statement in the workplace: *“But everyone knew the employee was on probation.”*
In practice, the manager knew it, the employee may have understood it, and Human Resources may have treated the first few months as a general assessment period. However, when a dispute arises, the organization is forced to rely not on assumptions but on documentation. At that point, intention is no longer enough. The law will focus on whether a valid probationary contract existed; when it began; when it ended; whether any extension was properly agreed to; and whether a fair process was followed before termination. Probation is not an informal waiting room before “real employment” begins. Employment starts immediately, and so do the employer’s legal obligations.
Probation must exist in writing:
A verbal understanding that an employee is “on trial” for a few months is not sufficient to establish a lawful probationary arrangement. Under the Employment Act of Kenya, probation must be clearly set out in writing within the employment contract. A properly drafted probation clause should clearly state the duration of probation, the expected end date, the applicable notice period, and the criteria by which performance or suitability will be assessed. Without these elements, the arrangement becomes uncertain and difficult to defend.
A vague reference such as “employment is subject to probation” is not enough, especially where the duration and conditions are not clearly defined. The safest and most compliant approach is to ensure that the employment contract is signed before the employee begins work. The guiding principle is simple: probation is not created by workplace practice or verbal understanding. It exists only where it is properly documented in a contract.
Six months is the legal limit, not the default rule:
Section 42 of the Employment Act provides that an initial probation period must not exceed six months. It may be extended once, for a further period not exceeding six months, but only with the employee’s agreement. In total, probation should not exceed twelve months. However, this does not mean that every employee should automatically be placed on a six-month probation period. The duration should be reasonable and proportionate to the nature of the role, its complexity, and the level of responsibility involved. More importantly, probation should not be treated as a passive timeline. It is an active performance management process. Employers are expected to set clear expectations early, monitor performance consistently, and provide feedback while the employee still has an opportunity to improve. Waiting until the final week of probation to raise concerns undermines the purpose of the process and increases legal risk.
An extension cannot be imposed unilaterally
There are situations where an employer may genuinely need more time to assess an employee. For example, the employee may have been absent, key deliverables may have been delayed, or the organization may not have had sufficient exposure to properly evaluate performance. These circumstances may justify an extension, but they do not justify imposing one. The law requires employee agreement. This means the extension must be mutually accepted and not assumed or implied. A casual conversation is not enough to meet this requirement.
A proper extension should be documented in writing. It should clearly explain why additional time is needed, what areas remain under assessment, the revised probation end date, the performance standards expected, and the support the employer will provide during the extended period. It should also clearly show that the employee has agreed to the extension. Timing is critical. An employer should never allow probation to expire and then attempt to “fix” the situation retrospectively. Once probation lapses without a valid extension, the employee’s status may automatically shift, limiting the employer’s ability to rely on probationary protections.
Inaction at the end of probation creates legal exposure:
As probation approaches its end, the employer must make a clear decision. There are only three lawful and practical options available. The organization may confirm the employee into permanent employment. It may propose a lawful extension, provided the employee agrees. Or it may initiate a fair process to terminate the probationary contract. Doing nothing is not a neutral option. Allowing an employee to continue working without clarity on their status creates uncertainty and exposes the organization to avoidable legal risk. For this reason, the probation end date should be treated as a strict management deadline, not a routine HR entry.
Probation does not remove the right to be heard:
A common misconception is that probationary employees can be dismissed without explanation or process. This is no longer a safe or lawful assumption under Kenyan employment law.
In Monica Munira Kibuchi & 6 Others v. Mount Kenya University, the Employment and Labour Relations Court confirmed that probationary employees are still entitled to procedural fairness. This position has been reinforced by the Court of Appeal. Before making a final decision, the employer must clearly communicate the concerns relating to performance, conduct, capability, or suitability. The employee must then be given a genuine opportunity to respond. That response must be considered before a final decision is made. A meeting held after a decision has already been reached does not satisfy the requirement of fairness. It is merely a notification, not a hearing. The correct sequence is important: the hearing must come before the decision, not after it.
“Not a good fit” must be supported by evidence:
Probation allows an employer to assess suitability, but it does not permit arbitrary or unsupported decisions. A conclusion that an employee is “not a good fit” must be grounded in clear and identifiable facts. The employment record should demonstrate what was expected of the employee, what issues were identified, what feedback was provided, how the employee responded, and why confirmation was not appropriate. Proper documentation serves two important purposes. It strengthens the employer’s position in the event of a dispute, and it improves internal decision-making by ensuring that performance concerns are properly identified and addressed. It also helps distinguish between employees who were genuinely unable to meet role requirements and those who were not given clear expectations, adequate support, or a fair opportunity to succeed.
Seven days’ notice still applies:
Even during probation, the Employment Act requires that either party may terminate the contract by giving at least seven days’ notice. Where notice is not served, payment in lieu of notice may be made, subject to the terms of the employment contract. Probation should therefore never be treated as a period where employment can be ended instantly, without notice or compensation.
The real risk lies in process failure:
Most probation disputes do not arise because employers lack valid concerns about performance. They arise because the process used to manage those concerns is flawed. Common issues include unclear contracts, missed probation deadlines, undefined performance expectations, improperly imposed extensions, lack of employee engagement, and decisions made before any hearing takes place.
In such cases, the employer may be substantively correct about performance, but procedurally wrong in how the matter was handled.
This is the key lesson: probation does not suspend the law. It simply provides a structured period for assessment within the boundaries of legal compliance.
How Eagle HR Consultants can support your organization:
Eagle HR Consultants supports organizations across Kenya and East Africa with employment compliance reviews, HR policy and contract development, probation and performance management systems, HR outsourcing, executive recruitment, salary benchmarking, pension governance, training, and Employer of Record services.
Where there is uncertainty about probation status, extension validity, or termination procedure, the most effective time to seek guidance is before any decision is communicated.
A short review at the right time can prevent a far more complex dispute later.
(This article provides general employment and human resource information and does not constitute legal advice for any specific situation.)
