Termination of employment is a sensitive and complex issue that lies at the intersection of
labor laws, human rights, and workplace policies. While employers seek to maintain high
productivity levels in the workplace, they should uphold the rights of employees facing
health challenges. Often, employers avoid approaching issues of ill health proactively, for
fear of violating disability discrimination laws. This article provides insights on what an
employer should do when faced with such and what rights accrue to an employee
dismissed based on their illness or disability.
Legal framework.
- The Constitution of Kenya 2010, Article 27 (5) provides for freedom from
discrimination based on disability. - Section 5 (3,b) of the Employment Act prohibits any form of discrimination by an
employer against an employee on the grounds of race, color, sex, language, religion,
political or other opinion, nationality, ethnic or social origin, disability, pregnancy,
marital status or HIV status except for Affirmative Action.
However, Section 5 (4,b) states that it wouldn’t be tantamount to discrimination to
distinguish, exclude, or prefer any person based on an inherent requirement of a job - Section 15 (1) of the Persons with Disability Act also prohibits discrimination by
employers based on disability.
Nevertheless, Section 15(2) states that a person with disability shall not be deemed
to have been discriminated against by an employer if:
❖ The alleged discriminatory act or omission was not primarily or entirely due
to the individual’s disability;
❖ The disability was a relevant factor in determining the suitability for the
specific job requirements; or
❖ The necessary workplace adjustments, whether physical, administrative, or
otherwise, to accommodate the person with a disability would place an
unreasonable burden on the employer.
Dismissal based on Medical Grounds
In Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR), the Appellant was
employed by the Respondent. However, during his employment, he developed medical
conditions that hindered his ability to perform his duties, leading the Respondent to
suspend his employment. The Supreme Court found the Respondent liable for
discriminating against the appellant on medical grounds. It categorically stated that the
respondent[employer] bore the burden of undertaking personal investigations to
determine the extent of the Appellant’s incapacity or injury. The Court relied on Standard
Bank of South Africa v Commission for Conciliation, Mediation & Arbitration and others
affirming that an employer must evaluate the extent of an employee’s incapacity or injury
and explore all reasonable alternatives before resorting to dismissal. Additionally, the
Supreme Court held that the Respondent failed to demonstrate any effort to accommodate
the Appellant in his condition. This failure amounted to indirect discrimination through
differential treatment and the Appellant was awarded damages by the Court.
Fundamentally, employers must show that they have made reasonable efforts to provide
the necessary accommodations to enable employees to continue performing their work
despite their medical conditions. This was outlined in the case of Kennedy Nyanguncha
Omanga v Bob Morgan Services Limited [2013] KEELRC 810 (KLR) where the Court held
that while employers have the right to terminate employment due to an employee’s
inability to work due to illness, they must do so with due care and sensitivity.
● The employer must demonstrate support for the employee’s recovery and return to
work.
● Before considering termination, the employer must subject the employee to a formal
medical examination to assess their ability to resume work within a reasonable
period. The court clarified that treatment notes and sick-off sheets do not qualify as
sufficient medical reports for termination based on medical grounds.
● The employer must provide the employee with a clear and specific notice of the
intended termination.
Failure to adhere to this process, even when there is substantial evidence of an employee’s
inability to work, constitutes unfair termination due to a lack of procedural fairness.
Therefore, employers must adhere to these requirements to ensure compliance with the
law and avoid legal shortcomings.
Dismissal based on Physical Incapacity
Section 41 of the Employment Act demands that before terminating an employee on the
grounds of misconduct, poor performance, or physical incapacity, an employer must clearly
explain the reason for the intended termination in a language the employee understands.
This implies that physical incapacity is a valid reason for terminating one’s employment.
However, due procedure must be followed whereby the employee is entitled to have
another employee or a shop representative of his choice present during this explanation
otherwise it would amount to unfair termination. For a termination of employment to be
considered fair, an employer has to have a valid reason for the termination[employee’s
conduct, capacity, or compatibility; or based on the employer’s operational requirements]
and due procedure has to be followed.
Conclusion.
While employers have the right to manage their workforce and ensure productivity, they
must do so within the confines of the law, particularly when dealing with employees facing
health challenges. The legal framework in Kenya, as outlined in the Constitution, the
Employment Act, and the Persons with Disability Act, protects employees from
discrimination based on medical conditions or disabilities. Employers must exercise due
diligence by exploring reasonable accommodations, conducting proper medical
assessments, and following fair termination procedures before dismissing an employee on
medical or physical incapacity grounds. Failure to adhere to these legal requirements may
result in claims of unfair termination and legal liability. Ultimately, a balanced approach
that upholds both the employer’s operational needs and the employee’s rights fosters a fair
and legally compliant work environment.
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