There is a way performance issues are usually handled in practice, and it is easy to see why. Concerns arise, the employee is called in, conversations begin, warnings follow, and eventually a Performance Improvement Plan (PIP) is introduced. From the employer’s side, this feels like engagement, feels like fairness and that the right thing is being done but the law asks a slightly uncomfortable question: is that process actually capable of proving anything?
That is the question that sits at the centre of Nairobi ELRC Cause No. E565 of 2023. The employee, a Business Manager, had been placed on a PIP. The employer relied on a series of meetings and ongoing engagements to show that her performance was being monitored. On the surface, nothing seemed out of place. This is, after all, how many organisations handle performance concerns but when the matter reached Court, the focus shifted in a way that employers often do not anticipate. It was no longer about whether meetings had taken place. It was about something more precise: what exactly was being measured, and where was the record of it?
The Claimant’s argument was straightforward, but pointed. The PIP had no clear targets. There were no measurable benchmarks. There were no appraisal reports or structured evaluations showing how her performance had been assessed over time. In simple terms, there was no way to tell, objectively, what she was expected to achieve, or whether she had failed to achieve it and once the gap was exposed, the rest of the process began to look different.
During the hearing, the Respondent’s own witness conceded that appraisal reports had not been produced. There was no documented framework showing how performance had been evaluated. What remained was a process built largely on meetings and verbal engagements. The court, however, was not persuaded that this was enough. The Court found that the absence of appraisal reports and structured evaluation criteria meant that poor performance had not been sufficiently proven. While there may have been concerns, those concerns were not translated into a framework that could be tested or verified. The reliance on PIP meetings and verbal discussions, without more, fell below the legal threshold required.
The result was inevitable: the termination was held to be substantively unfair.
What makes this decision particularly instructive is not just its outcome, but what it reveals about the role of a PIP within performance management. A PIP is often treated as the defining step in addressing poor performance. In practice, however, it is only one part of a much larger process. As guidance on PIP processes emphasises, a PIP should not be the starting point. It must be preceded by a proper performance evaluation, one that identifies specific shortcomings based on defined roles, targets, or key performance indicators. Without that foundation, a PIP operates in a vacuum.
What is striking about this decision is not that it sets a new standard, it is that it forces a closer look at how familiar processes are actually working because a PIP, in many workplaces, is treated as the defining step. Once it is introduced, there is a sense that the employer has done what is required but the reality is more exacting than that. A PIP is only as strong as the thinking behind it. If it does not start from a clear understanding of what the employee is expected to deliver, it has no real direction. If it does not translate concerns into measurable targets, it cannot track improvement and if it is not supported by consistent, written evaluations, it leaves nothing behind that can be relied on later.
That is exactly what happened in this case, The process existed, but it had no anchor. It moved forward without ever clearly defining the standard it was trying to enforce and that is where many employers will recognise the problem, not as a legal issue, but as a practical one. It is easy to say an employee must “improve.” It is much harder to say, in concrete terms, what improvement looks like, how it will be measured, and what evidence will show that it has not been achieved. Yet that is precisely what the law requires.
The process must be active. Employees must be guided, supported, and evaluated against the targets set. Progress must be reviewed at defined intervals, and those reviews must be documented. This documentation is not merely administrative, it is the evidence upon which the employer’s decision will ultimately stand or fall. In the absence of such a record, the process loses its evidentiary value. It becomes, as the Court effectively found, an exercise in engagement rather than proof.
There is also a broader procedural expectation that cannot be overlooked. Before termination, the employee must be informed of the concerns and given an opportunity to respond. This requirement reinforces fairness and ensures that the employee is not only assessed but also heard. A PIP does not replace this obligation, it must operate alongside it. Taken together, these elements point to a larger truth: performance management is not an event, it is a system.
What this case ultimately does is strip away the comfort that comes with simply “doing something.” It asks whether what is being done is actually capable of standing up to scrutiny. For employers, that means thinking differently about performance. Not in terms of steps taken, but in terms of standards set and evidence kept. For employees, it reinforces the expectation that performance should be assessed in a way that is clear, measurable, and transparent.
In the end, the case does not make termination for poor performance more difficult, it makes it more disciplined. It insists that conclusions be earned, not assumed and in doing so, it leaves a question that every employer must be able to answer, clearly and confidently: When performance is questioned, can you actually prove it?