In today’s workplace, exits are inevitable. But how an employer and employee part ways often determines whether the goodbye will end with a claim before the Employment and Labour Relations Court.
This is where Mutual Separation Agreements (MSA) prove their worth. Unlike unilateral terminations, MSAs provide a structured and legally binding framework to end the employment relationship by mutual consent. Properly crafted, they cover essentials including severance pay, notice periods, confidentiality, post-employment obligations and a waiver of future claims.
When done right, the benefits are clear: employers avoid protracted disputes, employees leave with certainty and dignity and both sides preserve professional reputations. The flexibility of MSAs also allows them to be tailored to the unique circumstances of each exit, that is, whether it is a senior executive’s departure or company-wide restructuring.
However, Kenyan courts are keen to strike down agreements that are more coercion than consent. Employers must therefore ensure:
- The employee signed the MSA voluntarily with no undue pressure or rushed timelines.
- That they complied with all labour laws especially statutory entitlements like notice, leave and pension.
- There is clarity in drafting because vague or incomplete terms often create more disputes than they resolve.
Employees, on the other hand, should resist the urge to quickly sign and move on without understanding the repercussions. Reviewing the document, ideally with a lawyer, ensures that rights are not inadvertently signed away.
Ultimately, a mutual separation should be viewed not as a shortcut, but as a professional exit tool, one that balances legal enforceability with fairness and humanity. When handled with care, it allows both employer and employee to close one chapter and move on to the next without leaving a trail of otherwise avoidable litigation.
In case of any inquiries, reach out to us via info@jmkadvocates.co.ke.
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