Performance evaluation are not mandatory and are largely dependent on the internal policies of a company as opposed to strict provisions of employment law. The relevant legal provisions that govern this as well as any other administrative processes are the laws relating to fair administration of justice and more specifically:
- The Constitution
- Article 41 (1): Every person has the right to fair labour practices.
- Article 47:
Fair administrative action
- Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
- If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
- Article 50 (1):
Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
- Employment Act
Section 5(2): An employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice. Employment policies are defined in this section to include performance evaluation systems, promotion, transfer, demotion, termination of employment on disciplinary measures.
Employers are encouraged to formulate effective performance evaluation tools and to incorporate best human resource management practices that best suit their firms. Such evaluation tools must be understandable by the employees and implemented in a manner that adheres to the highlighted legal provisions. Many firms employ the use of peer review mechanisms, self-evaluation mechanisms and quantitative mechanisms which would include evaluating sales made by an employee or clients acquired and critical incident feedback amongst other mechanisms.
The employer must endeavour to train the employees on the performance evaluation tool to ensure that the employee is not measured against a yardstick he is not aware of or does not adequately understood. The purpose and anticipated results of the evaluation exercise must also be disclosed to the employee to ensure that the employee has full knowledge of any adverse action that may be taken against them as a result of the evaluation exercise. The evaluation tool must clearly:
- set the specific goals to be achieved or lay out the employer’s expectations and performance standards to be achieved;
- assign the relevant member of staff undertaking the evaluation;
- detail the time, place and nature of evaluation to provide the employee with ample time to prepare for the exercise;
- provide the consequences resulting from the employee’s performance; and
- allow for a conversation between the employee and the evaluator of performance.
Below are some steps employers can follow when setting up employee performance evaluation tools:
- Develop an evaluation form.
- Identify performance measures.
- Set guidelines for feedback.
- Create disciplinary and termination procedures.
- Set an evaluation schedule.
It is highly advisable for all employers to seek the advice of an employment lawyer after developing the tool to ensure that there are no illegalities that may leave the employer vulnerable to a suit from an employee evaluated under the tool. Bearing in mind that some employee’s may challenge the results of an evaluation tool especially in cases where it may lead to a termination of the employment contract or other disciplinary measure, the employer must be careful to ensure that the evaluation tool is drafted in clear and concise language leaving little room for ambiguity or misinterpretation. In the case Banking Insurance & Finance Union (Kenya) v Barclays Bank of Kenya Ltd & another  eKLR, the court held that “an employer has the prerogative to set out management tools in support of productivity within its business. However, such tools should not negate agreed terms and conditions of employment between the parties with reference to the Recognition Agreement or Collective Bargaining Agreement and or replace the set legal requirements that address termination of employment due to poor performance or any other ground”.
This exercise should also be undertaken in a confidential manner so as to avoid any backlash that may result on the employee or any fall out depending on the information disclosed during the exercise. The same should also be done in an environment that ensures that the employees are not victimized. Records of such exercises should also be maintained by the employer and employee as the same may be used to evidence a trend especially in cases of disciplinary actions against employees.
Evaluation of employees helps an employer to receive feedback from one’s staff and in various instances is used to reward or otherwise monitor the performance of employees. Actions like promotions and salary increments when undertaken pursuant to evaluation of performance are readily accepted and eliminates any antagonism that would have otherwise arisen if the actions were undertaken in an arbitrary manner.