The ultimate ambition of most employees, especially those who have scaled the corporate ladder to the executive level, is to one day occupy the corner office, usually located on the topmost floor of the building with a balcony commanding the most vantage views of the city skyline and landscape yonder.

Welcome to the C-Suite, the hallowed terra inhabited by honchos whose titles have the letter ‘C’ as the common denominator. This is where you find the chief executive officer, chief finance officer, chief operations officer, chief legal officer and practically every other chief something. Everyone here graduated at the top of their class and winning has been their badge of identity. The brainpower on this floor produces enough electrical energy to blow up a 30-storey skyscraper. This is where decisions to save the world are made.

Despite the glamour, grandeur and sense of achievement that comes with tenancy at the C-Suite, there is a temptation to forget the adage that the rich also cry and that employment, unlike a marriage, is never meant to be permanent. At some point, probably sooner rather than later, the end will come, sometimes unexpectedly. 

It bears remembering that the C-Suite employee holds their position at the pleasure of the Board of Directors. Accordingly, the Board must be kept constantly happy and confident that you are the right person for the job. The vision of the Board is delivered by the C-Suite brigade, individually and collectively.

Unlike the termination of junior employees where termination must be grounded on evidence-based misconduct or poor performance, in the case of C-Suite employees, the most common ground of termination is usually the Board’s loss of confidence in the executive. The loss of confidence may arise from a change in company strategy or adoption of a new business model that suddenly renders the executive unsuitable or incompetent to drive the business to the next level. It may also be caused by power dynamics within the board or at the shareholder level where change is demanded.

The loss of confidence may also be due to soft issues which may not be easy to substantiate by solid evidence. These include perceived lack of enthusiasm or initiative, disloyalty, poor people skills, misuse of discretionary privileges, lack of prudence, disrespect to certain Board members or complaints by whistleblowers, usually fellow employees or suppliers, who may not wish to be identified or to testify.  While such issues may not be based on hard evidence, they, nonetheless, undermine the Board’s confidence in the executive.

Unfortunately, Kenyan law does not distinguish between executive-level terminations and other terminations. In all cases, for termination to be fair, the employer is required to have valid reasons-either misconduct or poor performance. This makes it difficult for employers to fire C-Suite employees based on loss of confidence.

Therefore, until the law is amended or our courts expressly recognise loss of confidence as a valid ground of termination, employers will have to contend with mutual separation as the only viable means to separate with C-Suite employees where there is no tangible evidence of misconduct or poor performance.

This option, however, comes at a high price in terms of compensation as anticipatory damages for unfair termination. The employee invariably approaches the negotiation table with the exalted notion that since the employer has no valid grounds of termination, if it wants the employee to go peacefully, it should buy their silence.

The negotiation for mutual separation is further compounded by the fact that unlike low cadre employees, the executive is much more informed of their legal rights and entitlement to due process. They can also afford good legal representation. They also happen to be abundantly blessed with a big ego and an innate fighting spirit to protect their personal dignity and professional reputation.

C-Suite employees, however, often lose sight of the fact that once the Board has made the decision to get rid of them, nothing will save them from the axe. The Board will already have taken good legal advice and budgeted for the cost of termination (including litigation if necessary) as a business expense.

Litigation is usually not a good idea for C-Suite employees. It significantly reduces their chances of finding alternative employment. Potential employers are pathologically averse to hiring litigious employees no matter how competent they may be. The top positions are also relatively few in the market and it is not unusual to find former holders of C-Suite positions remaining jobless for long.

Therefore, when faced with the threat of termination, irrespective of the validity of the reasons given, the best approach for the executive is usually to negotiate a reasonable mutual separation package on terms which, apart from the financial compensation, enable them to walk away with their head high and in a manner that preserves their dignity and career prospects. A mutual separation also ensures that the employee will not have to explain to potential employers why they were fired by their previous employer.

While the employer may be vulnerable and, therefore, willing to pay a generous separation package, the employee should remember that a bad settlement is always better than a good judgment, considering the time value for money and the likelihood of a court award coming five or more years down the line.

The terms of a mutual separation agreement ordinarily include a non-disparagement clause which gags either party from speaking ill of the other after separation. The employee may even manage to extract a reference letter from the employer. The parties also get to agree on the wording of the announcement to be made to the public concerning the separation which helps to protect the employee’s reputation and avoid negative speculation and damaging narratives on the reason for the separation.

For C-Suite separations, a mutual separation is a win-win solution.  

The article was  published in the Business Daily on 1 September 2025 and can be accessed here.