Understanding Termination Criteria in Kenya

Navigating the termination of employees on medical grounds in Kenya’s dynamic employment landscape presents a notable challenge for employers. They must balance productivity concerns with the need for sensitivity towards employees facing medical incapacity.

While the Employment Act, of 2007 addresses dismissal criteria related to physical incapacity, it lacks explicit provisions for terminations due to medical incapacity, particularly concerning mental health issues. This legislative gap creates a dilemma for employers, who often rely on judicial interpretations to guide their decisions and actions in such cases.

So, how should employers proceed when considering termination under such circumstances?

The Case of Simon Gitau Gichuru v Package Insurance Brokers Ltd

The Supreme Court, in the case of Simon Gitau Gichuru v Package Insurance Brokers Ltd (petition No. 36 of 2019), acknowledged this challenge.

Although the Employment Act doesn’t explicitly address dismissal on medical grounds, the Supreme Court highlighted the importance of demonstrating that medical assessments have been conducted to establish an employee’s incapacity to perform their duties, thereby justifying termination.

It’s essential to note that while this observation by the Supreme Court wasn’t the primary rationale for the decision, it underscores the complexity of the issue. Other judicial decisions, such as Kennedy Nyanguncha Omanga v Bob Morgan Services Limited [2013] eKLR, provide further insights.

In the Omanga case, Kennedy, after 19 years of service, faced health complications that prevented his return to work even after exhausting his sick leave. The company terminated his employment on medical grounds, leading to legal action. The court emphasized that while employers have the right to terminate due to illness, it must be done with care.

Structured Process: Steps for Termination Due to Medical Incapacity

The court outlined a structured process for termination on medical grounds:

1. Providing support to the employee for recovery and return to duty.
2. Conducting a specific medical examination to assess the employee’s
   ability to resume work.
3. Giving the employee specific notice of impending termination.

Legal Consequences: Importance of Adhering to Termination Procedures

Failure to adhere to this process, as in Kennedy’s case, could result in legal consequences. This procedural framework was reaffirmed in Lucy Chepkemoi v Sotik Tea Company Limited [2022] eKLR. Despite following the correct termination procedure, the company failed to provide reasonable accommodations to enable Lucy to continue working despite her disability, resulting in legal action based on discrimination grounds.

In summary, employers must not only follow prescribed termination procedures but also provide reasonable accommodations before initiating termination proceedings due to medical reasons. Termination should only occur when it’s evident that, even with accommodations, the employee cannot perform their duties effectively.