Balancing the right to dismiss an employee because of long-term illness and the right of an employee not to be discriminated against because of long-term illness requires an elaborate understanding of Kenyan labour laws.
This explains why some organisations have a lawyer as part of their HR team or their HR works closely with their legal department. Understanding the laws of employment and in particular, regarding long-term illness, is a major aspect of the HR profession.
Managers need to know that you cannot dismiss an employee because of a long-term illness. However, you can dismiss an employee because of his or her physical incapacity to perform a given task. It looks straightforward that an employee with long-term illness is incapacitated physically to perform.
However, organisations find themselves in a legal mess because of such an assumption. Only a professional medical practitioner can affirm that indeed the long-term illness is responsible for the employee’s inability to carry out his/her physical roles. Not the employer.
The Supreme Court has handled such a matter before in the case of Package Insurance Brokers vs Simon Gitau Gichuru (Petition 36 of 2019).
The decision read in part: The Employment Act does not provide for termination/ dismissal on medical grounds but provides for dismissal on the grounds of physical incapacity. Therefore, that it was wrong for Package Insurance Broker to dismiss Gichuru based on his physical incapacity, before carrying out a medical assessment test to ascertain that the employee was indeed incapable of performing his roles due to physical incapacity.
The nature of physical incapacity is also at play and requires consideration. For example, an organisation cannot dismiss a typist after a long-term illness that renders her blind even after a medical assessment affirms the same.
The organisation has an obligation to retrain the employee to use Braille and retain her. The case is however different for a driver who goes blind or semi-blind after a long illness. Therefore, while eyes are critical to a typist, there are still options, to the extent that one can still type without eyes.
Currently, some applications can translate Braille into normal typed texts. On the other hand, without proper eyesight, no one should be allowed to drive, making the dismissal justifiable. Therefore, the variability in physical incapacity requires consideration and avoids blanket application of the law even with the support of a medical assessment test.
In Kenyan labour laws, the statutory provision gives an employee 14 days of sick leave. The first seven days are on full pay and the next seven are on half pay. For long-term sickness beyond the 14 days, individual organisations rely on CBAs if they exist, the employment contract, and/or additional organisational policies.
Several considerations need to be put in place for organisations that develop policies for long-term sickness. The policy should be guided by the need for work continuity and engagement with employees with long-term illness, as well as the patient’s doctor. At all times, the privacy of the employee must be maintained and the policies must be in compliance with the country’s labour laws.
The long-term sickness absence policy is instrumental in clarifying the need for an employer to have a balance in offering the employee the time to recover from injury or illness because such a process tends to be slow.
The policy minimises the damage to productivity and efficiency that may arise from an employee being off-duty because of illness or injury.
However, the policy should be clear that the organisation will consider terminating the services of an employee after a long-term absence, with well-supported medical reports, after making all reasonable attempts to support the employee's return to work.
In most organisations, a long-term sickness absence is often defined to be lasting more than 28 calendar days.
Senior administrative assistant - University of Embu and Certified Human Resource Professional. The writing is my personal view. [email protected]
