Conditions employer must meet to sack staff on medical grounds

When one becomes physically incapacitated there is a lot that goes through their mind.

From the stress of medical expenses to emotional and psychological breakdown, the loss of employment can never be so untimely. More so when the doctor’s report indicates that the condition will only get worse.

With the anxiety of losing your job when you need it the most, coupled with the uncertainty of losing out on your medical cover, a chronically sick employee has a lot to worry about.

On the other hand, with the employer being very keen to meet targets, they have had to bear the brunt of being branded cold-hearted for terminating chronically ill employees.

But just how lawful is terminating an employee on medical grounds? It is noteworthy that the Employment Act provides that no employer shall discriminate directly or indirectly against an employee or prospective staff on grounds of pregnancy, mental status or HIV status, among others.

However, the same Act also gives the employer the power to terminate an employee’s contract of service on the ground of physical incapacity.

So what exactly is physical incapacity? This is referred to as not being able to perform any gainful employment due to congenital disability, illness (including mental), physical injury or intellectual deficiency.

This definition is key because not all illnesses would warrant a termination on the ground of physical incapacity.

With the Employment Act having justified the employer’s decision to terminate an employee on medical grounds — both the Act and the Industrial Relations Courts have made provisions on how termination on this ground is to be carried out by the employer.

First the Employment Act provides that the employer must explain to the staff in a language that one understands of the employer’s intention to terminate the employment.

Prior to this the employer should have provided the employee with seven-day sick leave with pay, and seven day sick leave on half pay as per the Act.

However, the regulations under the repealed Employment Act (CAP 226) which still remain in force provide for 30 days full pay and 15 days half pay. Since the provision in the Regulations under CAP 226 is more advantageous to employees, employers are expected to apply them in calculating sick leave.

Second, before the employer can justify termination of an employee on medical grounds the courts have held that the employer must show support to the staff to recover and resume duty.

This could be interpreted to mean that the employer makes available to the employee all the resources that would assist in achieving a quick recovery, including but not limited to time and money.

Third, once the employer begins to consider termination, they must subject the employee to a specific medical examination aimed at establishing the staff’s ability to resume work in the foreseeable future.

This is because, all measures have to be taken to safeguard against terminating an employee on medical grounds who would later recover and regain capacity to carry out his duties.

The only challenge this poses to employers is that of the “foreseeable future” and working with a reasonable time frame of the employee’s recovery.

The courts have held that treatment notes and sick-off sheets do not qualify as medical reports for purposes of termination on medical grounds.

Fourth, the employer must give the employee the specific notice of the impending termination. Failure for the employer to adhere to this procedure where there is overwhelming evidence of an employee’s inability to work due to physical incapacity would open the employer up to a lawsuit for wrongful termination.

It is to be noted that there are certain requests for medical examinations that an employer cannot oblige an employee to carry out for purposes of ascertaining his ‘medical fitness’ in carrying out his employment duties.

This is because to mandate an employee to undergo the same would be a violation of one’s basic right to privacy and would thus be deemed as unlawful.

Here, the subjective test would be for the employer to request the employee to carry out medical tests which would directly affect the performance of the staff’s essential functions on the job in question.

In addition, upon having been aware of the employee’s health status, the employer cannot divulge the same to other third parties without the consent of the employee.

Even after having been informed of the staff’s health status, the employer cannot unilaterally demote the employee as this would amount to discrimination which would be actionable in the Employment and Labour Relations Court.

Ms Akwana is managing partner at Collette Akwana and Company Advocates.