Court Sets New Rules for Employers Dismissing Workers After Sick Leave

Court Sets New Rules for Employers Dismissing Workers After Sick Leave

NAIROBI, Kenya – Employers in Kenya have been put on notice after the Court of Appeal reaffirmed that employees on authorised sick leave remain fully protected by labour laws and cannot be dismissed without due process, even when facing allegations of misconduct.

In a landmark judgment expected to shape employment practices across both the public and private sectors, the appellate court upheld an award of Ksh4.7 million to an employee whose contract was terminated while he was recovering in hospital.

The ruling establishes clearer legal standards for employers seeking to discipline or dismiss workers who are absent from work because of illness, emphasizing that authorised sick leave cannot automatically be treated as desertion of duty.

The three-judge bench comprising Justices Ahmed Issack, Linnet Mumo Ndolo and Weldon Kipyegon Korir ruled that employers must strictly comply with the Employment Act before terminating an employee’s contract, regardless of the allegations involved.

Employee Dismissed While Hospitalised

Court records indicate that the employee had been admitted to hospital and was on approved sick leave when his employer accused him of failing to account for company funds.

Rather than allowing him an opportunity to respond after his recovery, the employer proceeded to terminate his employment, arguing that the employee had deserted duty.

The employee challenged the dismissal in court, maintaining that he had been absent lawfully and that the employer had failed to follow the disciplinary procedures provided under Kenyan employment law.

Both the Employment and Labour Relations Court and later the Court of Appeal found merit in his claim.

The appellate judges ruled that an employer cannot simply classify an employee as having deserted duty merely because they are absent while on authorised medical leave.

Employers Must Follow Due Process

In its decision, the Court of Appeal outlined several mandatory steps employers must take before dismissing an employee who is absent due to illness.

Among them is the requirement to issue a show-cause letter detailing the allegations against the employee and informing them that disciplinary action is being considered.

The court further held that employees must be given a reasonable opportunity to explain themselves before any disciplinary decision is made.

Most importantly, employers are required to conduct a fair disciplinary hearing in accordance with the Employment Act before terminating an employee’s services.

Delivering the judgment, the judges stressed that employers must demonstrate genuine efforts to contact an employee before relying on claims of desertion.

“The critical consideration is that an employer invoking desertion as a defence to a claim of unlawful termination must demonstrate tangible efforts to reach out to the employee, with the objective of notifying them that termination on this ground is under contemplation,” the three-judge bench ruled.

The judges added that merely citing desertion without supporting evidence is insufficient.

“It is insufficient for an employer to merely invoke the term ‘desertion’ without substantiating it through action and evidence,” the court stated.

Newspaper Notice Not Enough

The judges also faulted the employer for attempting to terminate the employee’s services through a newspaper notice while he was still recovering from illness.

According to the court, the employer failed to demonstrate genuine attempts to personally communicate with the employee or facilitate a fair disciplinary process.

The judgment emphasizes that employers have a legal obligation to actively engage employees before making decisions that affect their livelihoods.

Legal experts say the ruling reinforces constitutional principles of fair administrative action and strengthens workplace protections guaranteed under Kenya’s labour laws.

Ksh4.7 Million Award Upheld

After reviewing the evidence, the Court of Appeal upheld an award of Ksh4,707,945.38, finding that the dismissal was both procedurally and substantively unfair.

The judges concluded that the employer had violated mandatory legal procedures by denying the employee an opportunity to respond to the allegations while he remained on authorised sick leave.

The ruling now serves as an important judicial precedent for employers, human resource practitioners and employees across Kenya.

Employment lawyers note that while employers retain the right to discipline workers accused of misconduct, they must always observe due process, regardless of whether the employee is at work or away on approved medical leave.

The decision is expected to influence future employment disputes involving absenteeism, illness and disciplinary procedures, reinforcing that authorised sick leave does not extinguish an employee’s legal rights.

For workers, the judgment offers renewed assurance that illness alone cannot be used as grounds for summary dismissal without adherence to the law.

For employers, it is a reminder that compliance with statutory disciplinary procedures is not optional but a legal obligation that courts are prepared to enforce through substantial compensation awards where violations occur.

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Court Sets New Rules for Employers Dismissing Workers After Sick Leave