Employers have a right to employ in accordance with national employment policy.

Section 5 of the Employment Act provides that it will not be discrimination by an employer to employ a Kenyan citizen in accordance with national employment policy. A national employment policy is a vision and a practical plan for achieving a country’s employment goals. A national employment policy should promote decent work, in which international labour standards, social protection and workers’ fundamental rights go hand in hand with job creation. Koki Muia v Samsung Electronics East Africa Limited [2015] eKLR. In this matter, the claimant brought a claim on unfair termination however it was the Respondents rejoinder that the claimant was incompetent and lacked the necessary knowledge for running the department assigned to them. The Respondent submitted that they had terminated the claimant procedurally and in accordance with the employment policy and practice. The court however disagreed with the Respondent and held the termination to be unfair and unlawful. The court relied on Section 5 of the Employment Act which defines an employment policy as follows; “An employment policy or practice includes any policy or practice relating to recruitment procedures, advertising and selection criteria, appointments and “the appointment process, job classification and grading, remuneration, employment benefits and terms and conditions of employment, job assignments, the working environment and facilities , training and development, performance, evaluation systems, promotion, transfer, demotion, termination of employment and disciplinary measures.” http://kenyalaw.org/caselaw/cases/view/112160/

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