Introduction
When an employer receives a complaint or suspects that an employee has committed misconduct, it may be necessary to conduct an investigation prior to commencing a disciplinary process. During the investigation, the employer gathers documentary evidence and statements from the employee and other involved parties.

An investigation report is a document that details an objective, independent and systematic process of uncovering facts about an incident. The primary purpose of the investigation is to determine whether factual evidence exists to show that, on a balance of probabilities, that the employee committed the alleged misconduct. The investigation reveals whether the facts were established and identifies any mitigating circumstances that the employer should consider.

Components of an investigation report
Typically, the investigation report will cover the following areas: –
Introduction – Provides the background and context of the issue under investigation;
Methodology – Describes how the investigation was carried out, what evidence was collected, which witnesses were interviewed, and their relevance to the issue under investigation;
Findings – Summarizes the findings from all relevant documents and the key evidence from the witnesses;
Analysis – Interprets the facts and the evidence while pointing out any inconsistencies;
Conclusion – The investigator gives a recommendation based on the collected evidence; and
Supporting documents – Includes copies of documents and witness statements referred to in the report.

Upon the conclusion of investigations, the employer may initiate disciplinary proceedings based on the investigator’s findings and recommendations.

General rule on disclosure of investigation reports
Section 41 of the Employment Act, 2007 requires that before terminating an employee on grounds of misconduct, the employer must explain to the employee the reason for considering termination in a language the employee understands. This is done by conducting a disciplinary hearing where the employee and their representative can respond to the allegations.

The general rule is that except for valid reasons, copies of the available evidence should be given to the employee to prepare for the disciplinary hearing. In Regent Management Limited v Wilberforce Ojiambo Oundo [2018] eKLR, the Court of Appeal emphasized the importance of providing copies of the evidence/documents to the employee because it is the only way an employee can prepare their defence. This means that if an employer intends to rely on an investigation report during the disciplinary hearing, the report should be shared with the employee in advance.

Additionally, if an employee requests for the available evidence such as an investigation report, the employer should provide it unless there is a valid reason not to. In Misheck v Kenya Airways Limited (Cause E6469 of 2020) [2024] KEELRC 1291 (KLR) (27 May 2024) (Judgment), instead of providing the investigation report upon the employee’s request, the employer referred the employee to other documents to prepare for his defence. The court held that failing to provide the report violated the employee’s right to a fair hearing. Advising the employee on which documents to use for his defence was deemed disingenuous, making the termination procedurally flawed.

Furthermore, in William v Bollore Africa Logistics Limited (Cause 1494 of 2017) [2023] KEELRC 3030 (KLR) (16 November 2023), the court stated that if the termination is based on an investigation report, the employer must supply the employee with the report, regardless of whether the employee requested it.

From the jurisprudence of the courts, it is evident that employers are obligated to disclose investigation reports to employees facing disciplinary action. This disclosure is rooted in the principle of promoting the employee’s right to a fair hearing. By providing access to the investigation report, the employee is better positioned to understand the allegations against them and prepare a defence.

Exceptions to the rule on disclosure of investigation reports
A common question is whether an investigation report containing sensitive information or resulting from a whistle-blower complaint should be shared with the employee, considering the need to maintain confidentiality and protect the whistle-blower’s identity.

In Ojuok v Tourism Promotion Services (Kenya) Limited t/a Serena Hotels (Employment and Labour Relations Cause E342 of 2020) [2023] KEELRC 2441 (KLR) (12 October 2023) the court held that not sharing the investigation report with the employee compromised the integrity of the disciplinary proceedings and the employee’s right to a fair hearing. To balance the need for confidentiality and an employee’s right to access the report, the court held that the employer could redact the whistle-blower’s name and identifying details before sharing the report. This approach allows the employee to receive the necessary information while safeguarding the whistle-blower’s identity.

Conclusion
An investigation report is crucial evidence in the disciplinary process as it may contain information that justifies an employer’s decision to terminate an employee. To ensure fairness and transparency, this report should be shared with the employee. If the employer cannot share the full investigation report for any reason, they should explain the reason to the employee or provide the evidence in a different, abridged form.

Researched and compiled by Fiona Tambo, Legal Associate. For further advice on any matters raised, please feel free to contact Fiona.