Your employee falls sick, you give them their due sick leave to allow them to recuperate hoping they will be back soon, because work needs to be done, your business needs to stay on its wheels and profit margin targets are beckoning. Their sick leave expires but your employee is still not back to shape. Two months later your employee returns to work. However, and unfortunately so, they have been diagnosed with an illness that can only be managed. For the next couple of months they are consistently in and out of hospital and due to their health condition they are no longer able to perform their duties. In fact, you have had to incur substantive costs on alternative labour to fill in for the employee’s incapacity.

In your very genuine opinion, you deem that it is no longer economical to keep them on your payroll.  After all, wouldn’t termination in the given circumstances be justified? You write them a letter of termination citing their continual illness as the reason for discontinuing their services. One week later you are slapped with court papers. A lawsuit has been filed against you for unfair termination. Do you have a viable defence?

What is the law on termination of employment on medical grounds?

Section 45 of the Employment Act, 2007 stipulates that no employee shall terminate the employment of an employee unfairly. For termination to be fair, it must satisfy the three-fold criteria set out under the Act, which is:-

• The reason for termination must be valid
• The reason for termination must be fair.
• Termination must be in accordance with fair procedure

In considering whether a decision to terminate an employee on medical grounds is fair it must be examined against all the three strands. The test is an inclusive one.   

Validity and fairness of reason are closely intertwined and are often construed conjunctively. The Act defines a fair reason as one that:-

1. relates to the employee’s conduct, capacity and compatibility; and
2. relates to the employer’s operational requirements of the employer

Sickness, in itself, is not a fair reason for termination; it is tied to the rationale of capacity.What an employer must show is that the employee is by reason of the sickness incapable of performing his/her duties under the employment contract. In other words, the mere fact that an employee is sick is not a valid reason to terminate an employment, it must be that the employee is incapacitated by the illness such that they cannot perform their duties even with reasonable accommodation from the employer.

The conditions that an employer must satisfy before terminating an employee on account of sickness as set out in the case of Kennedy Nyanguncha Omanga vs Bob Morgan Security Limited [2013]eKLR are as follows:-

1. The employer must show support to the employee to recover and resume duty
2. The employer must subject the employee to a specific medical examination aimed at establishing the employee’s ability to resume work in the foreseeable circumstances.
3. The employee must give the employee specific notice of the impending notice

In considering the question whether an employer has showed support to the employee to recover and resume duty, it is important to take in that Section 35 of the Employment Act obligates the employer to ensure the provision of sufficient and proper medical care and attention to the employee during illness. This is why it is essential that employers ensure that they provide medical cover for their employees. 

With regards to the requirement of a medical report specifically aimed at determining whether the employee is suitable to resume work, the emphasis on the specificity of the report implies that treatment notes and sick off sheets do not qualify as medical reports for the purposes of termination on medical grounds.

It must be noted that the law tends to lean towards what is more favourable to the employee. Courts, before making a finding that termination was fair, will always want to be satisfied that the employer made all reasonable efforts to accommodate the infirm employee, including assigning them lighter or alternative duties. The learned judge in the Kennedy Nyanguncha case remarked, “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.”

The third arm of the three-fold criteria of fair termination is that the termination must be conducted in accordance with fair procedure. Fair procedure as prescribed under the Act entails the following:-

1. The employee must be given a notice of the intended termination with reasons thereof in a language they understand; and
2. The employee shall have a chance to be heard in the presence of another employee or representative of their choice, and their representations considered before a decision to terminate is made.

In conclusion, while it may appear justified to employers to discharge employees who are too sick to work, especially where the illness is protracted, they must be careful to adhere to the laid out legal standards and procedures to avoid incurring expenses towards paying damages in lawsuits for unlawful termination.