Impartiality in Workplace Discipline: When Does a Disciplinary Panel Become Biased? A Commentary on Okello v Kenya Airways Limited [2026] KEELRC 1005 (KLR)

1. Introduction
Workplace disciplinary processes must not only comply with statutory requirements but must also meet the broader threshold of procedural fairness. One of the most critical—yet sometimes overlooked—elements of fairness is impartiality in the constitution of the disciplinary panel.

In Okello v Kenya Airways Limited [2026] KEELRC 1005 (KLR), the Employment and Labour Relations Court (ELRC) addressed this issue directly, offering important guidance on when a disciplinary process is rendered invalid due to bias.

2. Factual Background
The Claimant, an employee of the Respondent, challenged his dismissal on the basis that it arose from his refusal to implement procurement directives he believed to be irregular. His objection triggered disciplinary action initiated by his supervisor—the very individual who had issued the contested instructions.

A central feature of the dispute was that:

• The supervisor initiated the disciplinary process;
• The allegation of insubordination was directly linked to the Claimant’s refusal to follow that supervisor’s directives; and
• Crucially, the same supervisor sat as a member of the disciplinary panel that heard and determined the case.

The Claimant contended that this dual role fundamentally compromised the fairness of the process.

3. The Legal Issue: Bias and Procedural Fairness
The core issue before the Court was whether the participation of a complainant in the disciplinary panel amounted to procedural unfairness due to bias.

This raised a broader question: Can an employer be said to have complied with fair procedure where the process is structurally compromised, even if formal statutory steps are followed?

4. The Court’s Determination
The Court found in favour of the Claimant, holding that the disciplinary process was fatally flawed.

It emphasized that a disciplinary panel is tainted by bias where a complainant plays a substantive role in adjudicating the dispute. In this case, the supervisor’s involvement created:

• A real likelihood of bias; and
• A clear conflict of interest.

The Court rejected the notion that procedural compliance alone—such as adherence to statutory steps—was sufficient. Even though the employer appeared to comply with the requirements of Section 41 of the Employment Act (Kenya), the integrity of the process was undermined by the lack of impartiality.

5. The Test for Bias: Beyond Actual Prejudice
Importantly, the Court’s reasoning aligns with established principles of natural justice. The applicable test is not whether bias was actually proven, but whether there exists a reasonable apprehension or real likelihood of bias.

By sitting on the panel, the supervisor effectively became:

• Complainant (initiating the allegations), and
• Judge (participating in their determination).

This dual role is inherently incompatible with the requirement of fairness.

6. Implications for Employers and HR Practice

This decision has significant implications for disciplinary procedures in Kenya:

6.1 Separation of Roles is Essential
Employers must ensure a clear institutional separation between:

• Investigators or complainants; and
• Decision-makers.

Any overlap risks invalidating the entire process.

6.2 Procedural Compliance is Not Enough
Adherence to statutory requirements—such as issuing notices and conducting hearings—does not cure structural defects in the process. Fairness must be substantive, not merely formal.

6.3 Panel Composition Must Be Carefully Considered
Disciplinary panels should be constituted in a manner that guarantees neutrality. Individuals with prior involvement in the matter should not participate in adjudication.

6.4 Heightened Scrutiny in Whistleblower-Type Situations
Where disciplinary action follows an employee’s objection to potentially irregular or unlawful instructions, courts may apply closer scrutiny to ensure that the process is not retaliatory in nature.

7. Broader Jurisprudential Significance
The decision reinforces a growing body of Kenyan jurisprudence emphasizing fair process over procedural formality. It affirms that the right to a fair hearing includes the right to an impartial decision-maker—a principle deeply rooted in natural justice.

By focusing on the structural integrity of the disciplinary process, the Court signals that fairness must be embedded in both procedure and composition.

8. Conclusion
Okello v Kenya Airways Limited [2026] KEELRC 1005 (KLR) provides a clear and practical rule: a disciplinary process is fundamentally compromised where the complainant participates in determining the outcome.

For employers, the lesson is straightforward but critical—justice must not only be done, but must be seen to be done. Ensuring impartiality in disciplinary panels is not a procedural luxury; it is a legal necessity.

Disclaimer
This article is for general informational purposes only and does not constitute legal advice. It is not intended to create, and receipt of it does not establish, an advocate-client relationship. Readers should not act upon the information contained herein without seeking specific legal advice based on their individual circumstances. While every effort has been made to ensure accuracy, no responsibility is accepted for any errors or omissions or for any consequences arising from reliance on this publication.