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TERMINATION ON MEDICAL GROUNDS; LAWFUL OR UNLAWFUL?
All Insights / By Alakonya Law LLP
TERMINATION ON MEDICAL GROUNDS; LAWFUL OR UNLAWFUL?
By T. Kehonji
The Constitution of Kenya and the Employment Act 2007 frown upon discrimination at the workplace for any reason whatsoever. Many are times where employers are on the hook for dismissing employees based on a myriad of issues, one of them being discrimination. In a recent Judgement in Simon Gitau Gichuru v Package Insurance Brokers Limited (Petition 36 of 2019) the Supreme Court interrogated such a situation, laying down considerations to be taken into account when terminating employees, particularly on medical grounds.
Background
The Appellant, Mr. Simon Gitau, was employed by the Respondent on a permanent and pensionable contract. In the course of employment, he was diagnosed with a spinal cord tumour, and subsequently proceeded to India for surgery – a three months’ period during which he received full pay. Upon resumption of duties, Mr. Gitau requested sick leave due to his impaired mobility until a time when he would be able to move around the office unaided. His employer requested for a medical appraisal report of Mr. Gitau’s condition, and subsequently recommended a further two months’ sick leave. In June 2014, upon lapse of the two months’ sick leave, Mr. Gitau was suspended and later summarily dismissed for gross misconduct.
Mr. Gitau files a suit at the Employment Court for unlawful and wrongful termination, which suit succeeded, and he was awarded damages for wrongful and unlawful termination.
At the Supreme Court, the main issues for determination were:
a) Whether the Appellant was discriminated against on account of physical incapacity; and
b) Whether the procedure for termination was unfair and unlawful.
Discrimination in Termination of Employment
Discrimination can be said to have occurred where a person is treated differently from other persons in similar positions or on the basis of one of the prohibited grounds like race, or un fair practice and without any objectives and reasonable justification.
The Supreme Court stated that the Employment Act 2007 was enacted to give full effect to the realization of labour rights in the Constitution, one of them being Equality and Freedom from Discrimination. Section 5 of the Employment Act makes it an obligation for the employer to not discriminate, directly or indirectly, against an employee on grounds of race, colour, disability, among others. An employer alleged to have engaged in discriminatory practices must give reasons for taking such actions. Further, Section 41 of the Employment Act mandates an employer to explain reasons for terminating an employee, and afford the employee an opportunity to defend himself/herself and respond to the allegations.
In addition, the National Cohesion and Integration Act makes it unlawful for an employer to discriminate against his employee while The Person with Disabilities Act expressly prohibits discrimination and brings out the duty of accommodation.
In the above case the Respondent’s conduct amounted to indirect discrimination due to differential treatment on the following grounds:
• The Respondent conducted extraneous investigations in a bid to find fault to get rid of the appellant from employment;
• There was no evidence that investigations were conducted on other employees during that period hence subjected to different treatment which emanated from his disability;
• The Respondent failed to demonstrate they had tried to accommodate the appellant in his current state.
Unfair Termination
The Supreme Court held that section 44 of the Employment Act mentions actions that may warrant summary dismissal but this does not give the employer a blanket right to dismiss an employee at will. Furthermore, a termination shall amount to unfair termination under Section 45 if there is no valid reason furnished by the employer and the termination was not carried out in line with fair procedure.
For a complaint of unfair termination or wrongful dismissal, the burden of proving its occurrence rests on the employee while the burden of justifying grounds of termination or wrongful dismissal rests on the employer.
Conclusion
The upshot of this decision is that where an employee is terminated on medical grounds, the employer has to prove that they followed due procedure, and that the termination was not solely on the employee’s medical condition. Employees are thus protected from unfair termination and discrimination in the work place, particularly on matters which are not expressly stated in the labour laws. Although the Employment Act attempts to address these issues, it does not have an express provision for dismissal on medical grounds creating room for confusion. Therefore, in addition to statutory provisions, employers should strive to have company policies that tackle the issue of dismissal and lay down fair procedures on the same. However, before taking the termination route, alternatives to dismissal should first be exhausted.
Teresa Kehonji
kehonji@alakonyalaw.co.ke
18th July 2023
The Constitution of Kenya and the Employment Act 2007 frown upon discrimination at the workplace for any reason whatsoever. Many are times where employers are on the hook for dismissing employees based on a myriad of issues, one of them being discrimination. In a recent Judgement in Simon Gitau Gichuru v Package Insurance Brokers Limited (Petition 36 of 2019) the Supreme Court interrogated such a situation, laying down considerations to be taken into account when terminating employees, particularly on medical grounds.
Background
The Appellant, Mr. Simon Gitau, was employed by the Respondent on a permanent and pensionable contract. In the course of employment, he was diagnosed with a spinal cord tumour, and subsequently proceeded to India for surgery – a three months’ period during which he received full pay. Upon resumption of duties, Mr. Gitau requested sick leave due to his impaired mobility until a time when he would be able to move around the office unaided. His employer requested for a medical appraisal report of Mr. Gitau’s condition, and subsequently recommended a further two months’ sick leave. In June 2014, upon lapse of the two months’ sick leave, Mr. Gitau was suspended and later summarily dismissed for gross misconduct.
Mr. Gitau files a suit at the Employment Court for unlawful and wrongful termination, which suit succeeded, and he was awarded damages for wrongful and unlawful termination.
At the Supreme Court, the main issues for determination were:
a) Whether the Appellant was discriminated against on account of physical incapacity; and
b) Whether the procedure for termination was unfair and unlawful.
Discrimination in Termination of Employment
Discrimination can be said to have occurred where a person is treated differently from other persons in similar positions or on the basis of one of the prohibited grounds like race, or un fair practice and without any objectives and reasonable justification.
The Supreme Court stated that the Employment Act 2007 was enacted to give full effect to the realization of labour rights in the Constitution, one of them being Equality and Freedom from Discrimination. Section 5 of the Employment Act makes it an obligation for the employer to not discriminate, directly or indirectly, against an employee on grounds of race, colour, disability, among others. An employer alleged to have engaged in discriminatory practices must give reasons for taking such actions. Further, Section 41 of the Employment Act mandates an employer to explain reasons for terminating an employee, and afford the employee an opportunity to defend himself/herself and respond to the allegations.
In addition, the National Cohesion and Integration Act makes it unlawful for an employer to discriminate against his employee while The Person with Disabilities Act expressly prohibits discrimination and brings out the duty of accommodation.
In the above case the Respondent’s conduct amounted to indirect discrimination due to differential treatment on the following grounds:
• The Respondent conducted extraneous investigations in a bid to find fault to get rid of the appellant from employment;
• There was no evidence that investigations were conducted on other employees during that period hence subjected to different treatment which emanated from his disability;
• The Respondent failed to demonstrate they had tried to accommodate the appellant in his current state.
Unfair Termination
The Supreme Court held that section 44 of the Employment Act mentions actions that may warrant summary dismissal but this does not give the employer a blanket right to dismiss an employee at will. Furthermore, a termination shall amount to unfair termination under Section 45 if there is no valid reason furnished by the employer and the termination was not carried out in line with fair procedure.
For a complaint of unfair termination or wrongful dismissal, the burden of proving its occurrence rests on the employee while the burden of justifying grounds of termination or wrongful dismissal rests on the employer.
The Court further stated that in instances where dismissal is on the basis of medical incapacity, the burden of proving that an employee is medically unfit to continue to work rests on the employer to do so using expert opinion. The employer should carry out a medical assessment of the employee’s condition before terminating employment and take into account any medical report produced by the employee. Employers have a duty to accommodate disabled employees by providing a working environment suitable for such employees, such as a ramp for physically challenged employees, unless they can demonstrate that making the needed adjustment would cause undue hardship to the company.
Conclusion
The upshot of this decision is that where an employee is terminated on medical grounds, the employer has to prove that they followed due procedure, and that the termination was not solely on the employee’s medical condition. Employees are thus protected from unfair termination and discrimination in the work place, particularly on matters which are not expressly stated in the labour laws. Although the Employment Act attempts to address these issues, it does not have an express provision for dismissal on medical grounds creating room for confusion. Therefore, in addition to statutory provisions, employers should strive to have company policies that tackle the issue of dismissal and lay down fair procedures on the same. However, before taking the termination route, alternatives to dismissal should first be exhausted.
Teresa Kehonji
kehonji@alakonyalaw.co.ke
18th July 2023
