- 1.1 introduction
Employees are human beings who at times can get ill or injured. Some of these illnesses can cause disability or lead to terminal illnesses. Employees can also get injured and become disabled. In such situations How can a company (herein referred to as the employer) deal with an employee who becomes disabled or terminally ill during the course of the employment? Can an employer terminate such an employee on medical grounds? Can such termination amount to discrimination? What benefits is an employee terminated on medical grounds entitled to? This article seeks to answer all the above questions.
The Supreme Court in the case of Simon Gitau Gichuru V Package Insurance Brokers Ltd (petition No. 36 of 2019) stated that the Employment Act does not provide for termination/ dismissal on medical grounds but provides for dismissal on the grounds of physical incapacity. Therefore, before an employer dismisses you based on your physical incapacity, the employer is required to conduct a medical assessment test to prove that the employee is incapable of performing the tasks assigned to them due to physical incapacity arising from the illness or disability.
1.2 Can dismissal on medical grounds amount to discrimination?
Black’s Law Dictionary, 10th Edition defines discrimination as “failure to treat all persons equally when no reasonable distinction can be found between those favored and those not favored.” The court defined discrimination in the case of Hesbon Ngaruiya Waigi v Equitorial Commercial Bank Limited [2013] eKLR as:“Where a person is treated differently from others similarly situated like him, then this amounts to discrimination.”
When it comes to employment, the law does not allow any employee to be discriminated against by the employer on any grounds except for reasons of affirmative action. ARTICLE 27 of the Constitution 2010 prohibits any form of discrimination on the grounds of sex, marital status, health status, ethnic or social origin, age, disability, religious conscience, belief, culture dress, language or birth. The Employment Act under Section 5 also prohibits any form of discrimination by an employer against an employee. The Persons with Disability Act under Section 15 states that a person who has a disability should not be discriminated against on this basis.
However, it must be appreciated that not all cases of distinction in employment amount to discrimination. An example of this is provided in Section 5(3)(b) of the Employment Act; that it does not amount to discrimination to distinguish, exclude or prefer any person based on the inherent requirements of the jo. Equally, The Persons With Disability Act Section 15 (2) which states that a person with a disability shall not be deemed to be discriminated upon if the alleged act or omission was not (a) wholly or mainly attributable to the disability of the said person (b) the disability in question is a relevant consideration to the type of employment concerned and (c) if the special facilities or modifications whether physical, administrative or otherwise are what the employer cannot be reasonably expected to provide.
The court in the case of Lucy Chepkemoi V Sotik Tea Company (2022) eKLR, in this case, the claimant fell ill and was diagnosed with eye complications and despite getting treatment, she lost her eyesight completely. The employer dismissed her for physical incapacity. In her suit, she claimed that she was discriminated against by the employer. The employer cited that Section 5 (3) (b) of the Employment Act as read With Section 15(2) of the Persons with Disability Act and the court agreed with the Employer stating that there was no discrimination in this case.
From the above case analysis, we see how easy it is for an employer dismissing an employee on medical grounds to be deemed to have discriminated against the employee. However, the law has created a loophole under Section 5(3) (b) of the Employment Act And section 15 of the Persons with Disability Act.
Despite this loophole, the Employment Act requires that before dismissing an employee who is sick or disabled, the employer must take steps to ensure the recovery of the employee or in case of disability ensure that there are facilities in place to help the disabled person. If this is not done then it will be considered that there was discrimination and the employer will be required to compensate the person as was stated in Simon Gitau Gichuru V Package Insurance Brokers 2017 e KLR.
1.3 Can an employer terminate a person on grounds of physical incapacity and the procedure to terminate?
Yes, a company can terminate a person on the grounds of physical incapacity as provided for under Section 41 (1) of the Employment Act. Where a person is terminated under medical grounds it is deemed, they have been terminated on the ground of physical incapacity. In Kenya, it is now settled that before terminating the services of an employee on grounds of physical incapacity, the employer must follow due process which extends to post-termination rights like the right to appeals, payment of any accrued benefits and certificate of service. Section 41 of the Employment Act provides:
“(1) Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity, the 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.
(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), makes.
The law does not provide for the procedure for termination of an employee who is ill or has become disabled and incapable of performing the tasks due to the illness or disability, but to cure this, the court laid down the procedure for termination on medical grounds in the case of Kennedy Nyanguncha Omanga v Bob Morgan Services Limited [2013]eKLR(supra)
“While employers are entitled to terminate employment on the ground that an employee is too ill to work, they must exercise due care and sensitivity. First, the employer must show support to the employee to recover and resume duty. Second, 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. Treatment notes and sick-off sheets do not qualify as medical reports for purposes of termination of employment on medical grounds. Third, the employer must give the employee specific notice of the impending termination. Failure to follow this procedure even where there is overwhelming evidence of an employee’s inability to work amounts to unfair termination for want of procedural fairness.”
The rationale for requesting the medical examination of the employee is to know the extent of the injury. If the employee is not too sick to perform his work or the injury is not too severe to compromise the capacity of the employee to work then the employer cannot dismiss him from work. This was stated in the case of Ephantus Githuku Ndungu v Kenol Kobil Limited (supra) which cited the South African decision in Standard Bank of South Africa v Commission for Conciliation, Mediation & Arbitration and Others (JR 662/06) (2007) ZALC 94; 4 BLLR 356 (LC); (2008) 29 ILJ 1239 (LC) as follows
“An enquiry to justify an incapacity dismissal may take a few days or years, depending mainly on the prognosis for the employee’s recovery, whether any adjustments are working and whether accommodating the employee becomes an unjustified hardship for the employer. To justify incapacity, the employer has to “investigate the extent of the incapacity or the injury… (and)…. all the possible alternatives short of dismissal.”
1.4 What benefits is an employee terminated on medical grounds entitled to?
Sometimes the employee is injured in the course of employment which may lead to a terminal illness or disability. In this regard, the employer is mandated under Part V of the Work Injury Benefits Act to ensure that they compensate the employee whether they intend to terminate the employment or not. Where the illness is caused outside his employment and the employer wishes to terminate him or her, then he or she is required to offer the employee the following;
- Notice of termination as provided for under section 35 of the Employment Act
- A Termination letter
- Certificate of service as provided for under section 51 of the Employment Act
- Salary and bonuses till the date set out for termination.
- Any leave pays due to the employee.
- Any severance pays due to an employee provided for under section 40 (1)(g) of the Employment Act.
1.5 In conclusion.
Taking all the above into consideration, the law allows a company to terminate employees with a terminal illness or disabled but the company must ensure to follow the due process set out if not such termination will be considered discriminatory and will not hold in court.
The company should also ensure to give benefits to the employee that the employee is entitled to when dismissed under this circumstance. The company should also ensure that the level of illness or disability is so huge that it affects the employee’s ability to do his work and that they have tried everything possible to help in the treatment of the employee’s illness or disability and finally that they have tried to accommodate the employee’s illness or disability but due to said illness or disability the employee is unable to perform the task required of him or her. If they do this then they can successfully terminate the employee on grounds of physical incapacity.
