An Employee Just Reported Misconduct. What Do We Do in the First 48 Hours?

When an employee misconduct report lands on your desk, the first 48 hours should do four things: check whether the allegation involves bribery, protect the person who reported, secure the evidence, and make sure nobody is disciplined before they have been heard. The first step is the one most employers miss. Section 14 of the Anti-Bribery Act requires any person in a public or private entity to report knowledge or suspicion of bribery to the Ethics and Anti-Corruption Commission within twenty-four hours. A company that sits on an employee misconduct report involving a bribe for a week has already missed that window.

Check first whether the employee misconduct report involves bribery

Section 14(1) of the Anti-Bribery Act provides that every state officer, public officer or any other person in a public or private entity shall report to the Commission within twenty-four hours any knowledge or suspicion of instances of bribery. Under section 14(2), a person who is aware or suspicious of an offence under the Act and fails to report within the specified period commits an offence. The Commission is the Ethics and Anti-Corruption Commission.

That means an employee misconduct report that mentions a kickback, a facilitation payment, or an inducement offered to or by a supplier, customer or official cannot sit in an HR inbox while the company decides how it feels. Read each employee misconduct report on day one with that question in mind. Fraud, theft and other crimes that do not involve bribery are a different matter, and the right reporting route depends on the facts, so take legal advice early rather than after weeks of handling it quietly.

Protect the person who reported

Two provisions matter. Section 21 of the Anti-Bribery Act says a whistle blower, informant or witness in a bribery complaint shall not be intimidated or harassed for giving information to law enforcement institutions or testifying. A person who demotes, admonishes, dismisses, transfers to an unfavourable working area or otherwise harasses or intimidates a whistle blower or witness commits an offence, liable on conviction to a fine not exceeding one million shillings, imprisonment for up to one year, or both.

In the Employment Act, section 46(h) lists an employee’s initiation or proposed initiation of a complaint or other legal proceedings against the employer as not a fair reason for dismissal or for a disciplinary penalty, except where the complaint is shown to be irresponsible and without foundation. A report about a colleague is not always a complaint against the employer, so do not rely on the narrow wording. The safer course is to treat every reporter as protected, limit the number of people who know the report exists, and never let word of who raised it spread through the office.

Preserve the record before anything else

Write down what was reported, by whom and when, while it is fresh. Secure documents, emails and system access logs connected to the allegation before the person implicated has a chance to alter or delete them. If the report touches financial records or IT systems, restricting access is often more urgent than starting interviews. Evidence lost in the first two days is rarely recoverable later.

Do not act against the accused before they are heard

It is tempting to suspend or dismiss immediately when a serious allegation arrives. The Employment Act expects process first. Section 41 requires an employer, before terminating for misconduct, to explain to the employee in a language the employee understands the reason termination is being considered. The employee is entitled to have another employee or a shop floor union representative of their choice present, and the employer must hear and consider any representations they make. Under section 43, the employer must prove the reason for termination, and if it cannot, the termination is deemed unfair within the meaning of section 45.

A decision made before the accused has had any chance to respond is one of the most common ways an otherwise legitimate dismissal gets challenged. Interim measures such as moving someone away from the system or records in question are usually safer than announcing a suspension before any investigation has started, but check the employment contract and disciplinary policy before you choose. Our guides to the show cause letter and to dismissal for suspected crime set out the next steps.

Decide who investigates and what is in scope

Whoever investigates should not be implicated by the report, and in a smaller company that often means an external investigator. Record in writing what the investigation will cover and roughly how long it should take. An investigation with no defined scope drifts, and a drifting investigation is where confidentiality breaks down and rumour fills the gap.

Section 9(1) of the Anti-Bribery Act requires public and private entities to put in place procedures appropriate to their size and the scale and nature of their operations for the prevention of bribery and corruption. If a private entity fails to do so, and the failure is proved to have been committed with the consent or connivance of a director or senior officer, that person commits an offence under section 9(2). A reporting channel and an investigation protocol are part of those procedures. See our article on whistleblowing policies in Kenya for how to build one.