Court of Appeal Rules Employers Cannot Sack Workers on Sick Leave Without Following Due Process
The judges emphasized that due process is a mandatory legal requirement that must be adhered to regardless of the health status of the employee.
Photo: Courtesy.
By Zuriel Midambo
Employers have been barred from dismissing employees who are on authorized sick leave without following the full disciplinary procedure laid down in law, in a landmark judgment by the Court of Appeal that has significantly strengthened workers’ rights in Kenya.
In a ruling that is set to redefine employer-employee relations in both the public and private sector, the appellate court held that an employee who is away from work on approved medical leave remains fully protected under the Constitution of Kenya 2010 and the Employment Act, 2007.
The three-judge bench ruled that sickness or absence from duty while on authorized sick leave cannot be used as a justification to bypass fair labour practices or to unfairly terminate employment. The judges emphasized that due process is a mandatory legal requirement that must be adhered to regardless of the health status of the employee.
According to the judgment, which was delivered in Nairobi this week, any employer who intends to dismiss a worker must first issue a formal show-cause letter clearly outlining the reasons and grounds for the intended termination.
The court further directed that the affected employee must be granted sufficient time to respond to the allegations raised in the show-cause letter, and must be accorded a fair and impartial disciplinary hearing where they are given an opportunity to present their defense, either in person or through a representative.
“An employee on authorized sick leave does not cease to be an employee. The employer is under a strict obligation to follow the procedure set out under the Employment Act. This includes issuing a show-cause, receiving a response and conducting a fair hearing before termination can be effected,” the court ruled.
The decision arose from an appeal filed by an employer who had terminated an employee while the latter was still on sick leave, arguing that prolonged absence had affected operations. The Court of Appeal however found the dismissal to be procedurally unfair and unlawful.
Labour law experts have welcomed the ruling, saying it sets a crucial precedent that will protect vulnerable workers who are unable to report to work due to illness. They noted that many employers have been using sick leave as an excuse to summarily dismiss workers without compensation.
The ruling serves as a stern warning to employers that failure to follow due process will render any dismissal unfair, exposing organizations to costly compensation claims, reinstatement orders and damages for unfair termination.
The court concluded that authorized sick leave is a right and not a privilege that can be punished, and employers must respect the dignity and rights of workers even in their weakest moments.
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