The primary law that governs termination of employment in Kenya is the Employment Act, 2007. The Employment Act under Section 45(2) recognizes that an employer shall be deemed to have terminated an employee fairly if the reason for termination is valid and related to the employee’s the conduct, capacity and capability. Section 41(1) of the Act expressly allows for the termination of an employee based on physical incapacity. Additionally, it is a requirement of section 41 of the Act that the termination of an employee on any allowable ground has to adhere to the procedural requirements of the Employment Act.
An employer is however required to follow due process before the termination of the employee’s services as provided in Section 41 of the Employment Act as follows:
“Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.
(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.”
An employer also needs to consider other provisions of the law, especially those touching on discrimination, such as article 27 of the Constitution of Kenya and section 5 of the Employment Act when considering to terminate an employee on medical grounds. Thus, the company MUST ensure that it adheres to the substantive and procedural legal requirements for the intended termination to be considered valid and fair as envisioned under section 45(2) of the Employment Act.
Substantive and Procedural Requirements to be considered when terminating an employee on medical grounds
Section 41 of the Employment Act outlines the procedure to be followed by an employer when terminating an employee, as follows:
- The employer MUST inform and explain to the employee the reason for which the employer is considering termination.
- Before terminating an employee, an employer MUST hear and consider any representations the employee may make.
The requirements for terminating an employee on account of sickness were also laid out in Kennedy Nyanguncha Omanga v Bob Morgan Services Limited [2013] eKLR
“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. First, the employer must show support to the employee to recover and resume duty. Second, once the employer begins to consider termination, they must subject the employee to a specific medical examination aimed at establishing the employee’s ability to resume work in the foreseeable future. Treatment notes and sick off sheets do not qualify as medical reports for purposes of termination of employment on medical grounds. Third, the employer must give the employee specific notice of the impending termination. Failure to follow this procedure even where there is overwhelming evidence of an employee’s inability to work amounts to unfair termination for want of procedural fairness.”
In conclusion, the company MUST ensure that it adheres to the substantive and procedural legal requirements for the intended termination to be considered valid and fair as envisioned under section 45(2) of the Employment Act. Further, while Kenyan Courts are not opposed to allowing termination on medical grounds, it urges employers to be guided by procedural fairness as outlined in Section 41 of the Employment Act.
