Introduction
Managing employees who are on prolonged sick leave is one of the most delicate and legally sensitive challenges facing employers in Kenya today. While employers are entitled to maintain operational efficiency and productivity, Kenyan employment law does not permit automatic dismissal merely because an employee has been absent from work due to illness for an extended period. Employers who mishandle such situations expose themselves to claims for unfair termination, discrimination, violation of fair labour practices and substantial monetary awards before the Employment and Labour Relations Court (ELRC).
Kenyan courts have increasingly emphasized that illness is not misconduct and that employers must approach termination arising from medical incapacity with fairness, procedural propriety and reasonable accommodation. Consequently, employers contemplating termination on account of prolonged illness must strictly comply with the provisions of the Employment Act, 2007 and the principles developed through judicial precedent.
The Legal Framework Under the Employment Act, 2007
The principal statutory provisions governing termination arising from prolonged illness are Sections 30, 41, 43 and 45 of the Employment Act, 2007.
Section 30 of the Employment Act provides for sick leave entitlement. An employee who has worked continuously for at least two consecutive months is entitled to not less than seven days of sick leave with full pay and seven days with half pay in every twelve-month period, subject to production of a medical certificate signed by a duly qualified medical practitioner. While the provision sets out minimum statutory sick leave, it does not authorize automatic termination once the sick leave period lapses.
Instead, employers must still establish whether the employee’s illness or medical condition has rendered them incapable of performing their duties and whether termination is justified under the circumstances. The mere fact that an employee has been absent for a prolonged period does not, by itself, amount to a lawful ground for dismissal.
Section 43 of the Employment Act places the burden upon the employer to prove the reasons for termination, failing which the termination is deemed unfair. Consequently, where an employer intends to terminate employment on grounds of medical incapacity or prolonged illness, there must be credible medical evidence demonstrating that the employee is unable to effectively discharge their duties or that the incapacity substantially affects the employer’s operations.
Section 45 further provides that termination is unfair where the employer fails to prove that the reason for termination was valid and fair or where the employer fails to follow fair procedure. Kenyan courts therefore evaluate both substantive justification and procedural fairness when determining whether termination on medical grounds was lawful.
Procedural Fairness and Medical Incapacity
One of the most critical obligations imposed upon employers is compliance with Section 41 of the Employment Act. The section requires an employer to explain to the employee, in a language they understand, the reasons why termination is being contemplated and to accord the employee an opportunity to respond in the presence of another employee or a shop floor representative of their choice.
Importantly, Section 41 expressly applies not only to misconduct but also to poor performance and physical incapacity. Employers therefore cannot bypass disciplinary procedures merely because the employee is on prolonged sick leave.
The Court of Appeal decision in Postal Corporation of Kenya v Andrew K. Tanui remains the leading authority on procedural fairness under Section 41. The court held that an employer must notify the employee of the grounds being considered, grant the employee an opportunity to respond and genuinely consider the employee’s representations before arriving at a termination decision. Failure to comply with these safeguards renders termination procedurally unfair irrespective of whether a valid reason existed.
Where termination is being considered on account of illness, employers are therefore expected to invite the employee to a formal hearing, discuss the medical situation, consider the employee’s prognosis and evaluate possible alternatives before making a final decision. Abrupt dismissal without a hearing or proper engagement is likely to be declared unlawful by the ELRC.
Medical Assessment and Reasonable Accommodation
Kenyan courts have also emphasized the importance of proper medical assessment before termination on medical grounds. Employers should not rely on assumptions, rumours or operational frustration when concluding that an employee is medically incapable of working. Instead, there should be objective medical evidence regarding the employee’s condition, prognosis and ability to resume work.
In Ayuya v Kenya Airways Limited, the Employment and Labour Relations Court examined retirement on medical grounds and underscored the importance of medical evaluation, procedural fairness and reasonable accommodation measures. The court considered whether the employer had properly assessed the employee’s medical status and whether alternatives such as lighter duties or accommodation had been explored before separation.
The principle of reasonable accommodation is increasingly becoming central in Kenyan employment law. Before terminating an employee on account of prolonged illness, employers should consider whether the employee can continue working through modified duties, flexible schedules, remote work arrangements, reduced workload or temporary reassignment where feasible. Courts are increasingly viewing reasonable accommodation as part of fair labour practice and constitutional protection of employee dignity.
In Bakhoya v Chane & Anor ([2024] KEELRC 293), the court addressed issues surrounding illness, discrimination and adverse employment action connected to an employee’s medical condition. The decision demonstrates the judiciary’s growing willingness to scrutinize dismissals arising from illness and to examine whether employers acted fairly and without discrimination.
Employers who fail to demonstrate accommodation efforts risk exposure not only to unfair termination claims but also to constitutional and discrimination-based claims that may attract substantial damages.
Best Practices for Employers in Kenya
Before terminating an employee who has been on prolonged sick leave, employers should adopt a structured and carefully documented process. First, comprehensive medical records should be obtained and, where necessary, an independent medical examination conducted to determine the employee’s prognosis and fitness to work. Secondly, employers should maintain consistent communication with the employee throughout the period of illness instead of remaining silent until termination is contemplated.
Thirdly, employers should properly document all operational challenges caused by the prolonged absence together with any accommodation measures considered or implemented. Courts increasingly expect employers to demonstrate that termination was a last resort after reasonable alternatives had been explored. Finally, where termination becomes unavoidable, strict compliance with Section 41 is essential. A formal notice should be issued, a hearing conducted and the employee’s representations genuinely considered before a final decision is made.
Failure to comply with these requirements may expose employers to awards of compensation of up to twelve months’ gross salary together with notice pay, accrued dues, costs and interest. In appropriate cases, courts may also award damages for discrimination or violation of constitutional rights.
Conclusion
Termination of employees on account of prolonged sick leave requires employers to strike a careful balance between operational efficiency and compliance with Kenyan labour law. The Employment Act, 2007 and recent judicial decisions make it clear that illness alone does not automatically justify dismissal. Employers must establish medical incapacity through credible evidence, comply with the mandatory hearing requirements under Section 41 of the Employment Act and demonstrate fairness, objectivity and reasonable accommodation throughout the process.
Employers who rush into termination without following due process expose themselves to significant legal and financial liability. A carefully managed and legally compliant approach is therefore essential whenever prolonged illness or medical incapacity arises in the workplace.
Call to Action
For legal advisory on termination procedures, disciplinary processes, HR compliance, medical incapacity matters and employment disputes in Kenya, contact F.M. Muteti & Co. Advocates. Our employment lawyers in Kenya advises local and international employers on complex labour matters including unfair termination claims, workplace investigations, redundancy processes and litigation before the Employment and Labour Relations Court.