Kenya's Supreme Court issues guidelines on terminating employees on medical grounds

By James WaNjeri, Advocate

Kenya's apex court has in a unanimous decision by a 5 member bench set out the considerations to be had when terminating employees on medical grounds.

This decision in Petition 36 of 2019, set aside the judgment of the Court of Appeal which had found in favour of the Employer and proceeded to award the Employee (Appellant) Kshs. 2, 000,000 for discrimination against him in addition to other terminal benefits.

The background of the dispute is that sometime in November 2013, the appellant was diagnosed with a tumor upon which his doctor recommended that he seeks medical attention in India. On 16th November 2013, the appellant proceeded to India for a spinal cord surgery where he underwent successful treatment until 17th January 2014, during which period he continued to receive his full salary. He postoperatively developed paraplegia which impeded his ability to function at an optimal level physically. Inevitably, this condition affected his ability to execute his duties to the required standard. He was later terminated on 1st August, 2014.

The Supreme Court recognised that in Kenya, the Employment Act does not have any express provisions on termination of employees on medical grounds. Section 41(1) only makes reference to physical incapacity. In this present case, the Court was therefore confronted with the question of, "what is the procedure to be used when an employer wants to terminate on medical grounds?"

Under section 45(2) of the Employment Act, termination of an employee’s contract of service is unfair if the employer fails to prove that it was grounded on a valid and fair reason and that it was done after following a fair procedure.

In regard to the dismissal in cases of incapacity, an employer shall explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.

The Court held that when terminating on medical grounds, the employer is required to demonstrate that medical assessments were conducted which rendered the employee incapable of performing.

The onus is on the employer to investigate the extent of the incapacity or the injury and all the possible alternatives short of dismissal. At the hearing, the Employee must also be given an opportunity to dispute that medical opinion, especially if they feel that they are able to continue working.

The importance of this exercise cannot be overstated as under Article 27 of the constitution, no person should directly or indirectly discriminate against another person on account of health status or disability. This opens up the Employer to claims of violation of the Constitution.

Employers should be aware that when a medical condition incapacitates the Employee in any way, it opens up the process to other Statute such as the Persons with Disabilities Act No 14 of 2003. This Act provides for both temporary and permanent disability. Section 15 of the Act expressly prohibits discrimination by employers. The Act goes further to require employers to put in place special facilities in order to accommodate its employees with disabilities. The employer is therefore under a duty to accommodate the employee.

In this decision, the Supreme Court held that the Employer failed to demonstrate that there would have been any undue hardship they would have incurred if they chose to reasonably accommodate the needs of the employee by providing amenities such as a ramp to ease the appellant’s movement, or even providing flexible working hours. Their actions were held to have violated the employee's Constitutional Rights and he was awarded general damages of Kshs. 2,000,000.

Conclusion

This decision highlights the complexities of terminating employees on medical grounds. However, the lack of express provisions in the Employment Act creates an opportunity for Employers to develop their own policies that will guide the process in a manner envisaged by the law. Courts will be guided by the internal policies of an organisation when determining some of these complex questions, to the extent that the policies are aligned with the law. Lack of such policies with clearly defined processes is a legal risk that opens up the business to human error which can have costly consequences. It is therefore imperative that any such review is done under the guidance of your legal team.

The contents of this newsletter do not constitute legal advice and are provided for general information purposes only. To get legal advice, contact us on legal@jnadvocates.com