What Standard of Proof Do You Actually Need to Dismiss an Employee?

One of the most common (and most paralysing) misconceptions among employers is that terminating an employee for misconduct requires the kind of airtight, beyond-reasonable-doubt proof you’d need to secure a criminal conviction.

The Case

In Consolidated Bank of Kenya Limited v Lydia Kaguri Makathimo (Court of Appeal at Nyeri, Civil Appeal No. 114 of 2021), the bank had dismissed an employee (a Customer Service Officer and joint vault custodian) after two internal investigations: one into a Kshs. 641,500 cash shortfall linked to a lapse in the bank’s dual-control vault procedure, and a separate one into an unauthorised customer account debit and an undisclosed private money-lending arrangement that conflicted with her terms of employment.

The Employment and Labour Relations Court initially sided with the employee, finding that although the bank had followed fair procedure, it hadn’t proven its case strongly enough to justify dismissal. C.B. Mwongela & Co. Advocates, acting for the bank on appeal, argued that this set the evidentiary bar too high, and the Court of Appeal agreed, setting aside the initial judgment entirely and dismissing the employee’s claim.

The Standard the Court Actually Applied

The Court of Appeal was explicit about what an employer is and isn’t required to prove. Citing its own earlier decision in Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 Others, the Court held that it is improper to expect an employer to conduct a near-forensic investigation to a standard approaching “beyond reasonable doubt.” Instead, the applicable standard is the balance of probabilities, and more specifically, whether the employer had reasonable and sufficient grounds to genuinely believe the misconduct occurred.

The Court went further, drawing on the Canadian Supreme Court’s reasoning in McKinley v B.C. Tel, as previously adopted in Judicial Service Commission v Gladys Boss Shollei: the real question is whether an employee’s conduct (dishonest or otherwise) caused a breakdown in the employment relationship serious enough to justify termination, assessed in context, not against a fixed evidentiary checklist.

In this case, the employee had herself admitted, in writing, that she had handed off her half of a two-person vault-control system to a colleague, a clear departure from established procedure that the Court found sufficient, on its own, to ground a reasonable and genuine belief of misconduct.

What This Means in Practice

For HR managers and in-house counsel, the practical value of this standard is clarity, not a green light. Understanding where the legal bar actually sits helps a business assess, with appropriate confidence, whether a genuine misconduct concern meets that threshold. The standard requires:

A genuine, good-faith belief in the misconduct, based on evidence actually gathered;

Reasonable and sufficient grounds for that belief, not certainty, but more than mere suspicion; and

A process that gives the employee a real opportunity to respond before a final decision is made.

That last point matters as much as the standard of proof itself: this case did not turn on evidence alone. It turned on an employer that had also given the employee a fair hearing, at each stage, before acting. The two requirements (a genuine, well-founded belief, and a fair process) work together, not as alternatives.

C.B. Mwongela & Co. Advocates advises employers on disciplinary procedure, termination decisions, and representation in employment disputes from the Employment and Labour Relations Court through to the Court of Appeal. In this case, the firm acted for the bank on appeal and secured a Court of Appeal ruling that the dismissal was both procedurally and substantively fair, overturning the ELRC’s earlier decision in the employee’s favour.