In Kenya’s dynamic employment landscape, terminating employees on medical grounds poses significant challenges for employers as employers must weigh between productivity and being sensitive in the face of medical incapacity. While the Employment Act, 2007 provides criteria for dismissal by referencing physical incapacity, gaps exist regarding medical incapacity terminations such as mental health issues, creating a dilemma for employers navigating the dismissal process. Given the lack of clarity in the legislation employers have to turn to judicial decisions which play a pivotal role in interpreting and applying employment laws.
How then should an employer proceed in terminating an employee in such circumstances? The Supreme Court, in the case of Simon Gitau Gichuru V Package Insurance Brokers Ltd (petition No. 36 of 2019), appreciated this dilemma. While there’s no express provision for dismissal on medical grounds in the Employment Act, the Supreme Court commented that in such instances, the employer must demonstrate that medical assessments were conducted, which conclude that the employee is incapable of performing their duties, thus leading to termination of their employment.
It’s imperative to note that this comment by the Supreme Court did not constitute the main rationale for the decision since it was not among the issues identified by the Supreme Court for determination. Therefore it is important to consider other decisions when seeking to deal with this very sensitive issue. We have looked at the decision of the Employment and Labour Relations Court in Kennedy Nyanguncha Omanga v Bob Morgan Services Limited [2013] eKLR.
In this case, Kennedy had worked for the company for 19 years before experiencing health complications, prompting him to seek medical attention. Even after his sick leave was exhausted, Kennedy remained unable to resume work due to ongoing health complications. Consequently, the company terminated his employment on medical grounds. Subsequently, he took legal action against the company.
In determining the suit, the court noted that while employers have a right to terminate employment on the grounds of an employee’s inability to work due to illness, they must do so with due care and sensitivity. To this end, the court outlined a structured process for termination on medical grounds:
- The employer must show support to the employee to recover and resume duty.
- Once the employer begins to consider termination, they must subject the employee to a specific medical examination aimed at establishing the employee’s ability to resume work in the foreseeable future.
- The employer must give the employee specific notice of the impending termination.
Because the employer did not follow the procedure described above, the court found that the procedure adopted by the company was deeply flawed and awarded damages to Kennedy.
The procedure set out above was reaffirmed in the case of Lucy Chepkemoi v Sotik Tea Company Limited [2022] eKLR. In this case, Lucy had worked for the company for 10 years before developing eye complications that eventually resulted to loss of sight. The company paid for the costs of her medical treatment and for the costs of her training on the use of Braille and white cane.
The company equally assigned her lighter work because of the disability. However, it became evident that the nature of the company’s work posed a significant risk to Lucy’s safety. A case in point was one instance where she accidentally fell at the company’s stores leading to a long sick-off of 187 days with full pay.
Considering this, the company engaged in discussions with Lucy regarding her medical condition and recommendations from various doctors, before ultimately reaching a decision to terminate her employment. Further, after the termination, the company held a meeting with Lucy and her representative where she requested to retain her employment.
Following the termination, Lucy filed a suit against the company, arguing that the company had not provided her with reasonable accommodation to enable her to continue working, but instead went ahead to terminate her employment on account of disability. She based the argument on Article 27 of the Constitution which provides that persons should not be discriminated on account of, among other things, disability.
In its decision, the court found that the correct procedure had indeed been followed by the company. However, the court noted that whilst the correct procedure for termination had been followed, the company had not provided any special facilities for her or modified the work environment to reasonably accommodate her to enable her to continue working.
It is therefore important for employers to not only adhere to the prescribed termination procedures outlined in the case of Kennedy Nyanguncha Omanga, in cases of termination on medical grounds, but equally ensure that before initiating the termination process, reasonable accommodation is availed to the employee to enable them to perform their duties. It is when it becomes apparent that the employee cannot deliver, even considering the reasonable accommodation, should the termination on medical grounds process be commenced.
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