In the recent decision of Ndung’u v Safaricom Kenya PLC Limited (Cause E6492 of 2020) [2025] KEELRC 181 (KLR), the Employment and Labour Relations Court delivered a significant judgment on termination of employment based on medical incapacity. The case provides a timely reminder to employers that even where medical grounds justify termination, the process must comply with the procedural fairness requirements of the Employment Act.
Background
The Claimant was employed by Safaricom PLC as a customer care representative from 2010. Over time, she developed occupational illnesses, including acoustic shock syndrome and rhinosinusitis, as a result of prolonged headset use. Despite medical recommendations suggesting redeployment to a headset-free environment, her contract was terminated in February 2018 on medical grounds.
The Claimant filed a suit in November 2020 alleging unfair termination, discrimination, and failure by the Respondent to settle her outstanding loan with NCBA Bank. Though she received her terminal dues and pension, her appeal for redeployment or reinstatement was declined. She sought Kshs. 4.5 million in compensation.
Court’s Analysis and Determination
- Unfair Termination
The Court acknowledged that the employer had a valid reason for termination based on the Claimant’s medical condition. However, it held that the process fell short of the statutory requirements set out under sections 41 and 45 of the Employment Act.
Specifically, the Respondent failed to demonstrate that the Claimant was invited to a disciplinary or consultative meeting, informed of the reasons for the proposed termination, or allowed to be accompanied by a fellow employee or union representative. Citing precedents such as Eric Gichuru Thiga v Unga Limited [2021] eKLR and Dominic Kioko Thyaka v Kenya Electricity Generating Company Limited [2021] KEELRC 27 (KLR), the Court reiterated that any termination, including those based on incapacity, must be procedurally fair.
The Claimant was awarded compensation equivalent to 5½ months’ salary (Kshs. 492,272).
- Discrimination Claim
The discrimination claim was dismissed. The Claimant failed to provide evidence of similarly affected colleagues who were treated more favourably. The Court, referencing Gichuru v Package Insurance Brokers Limited, stressed that to succeed in a claim for discrimination, a claimant must identify comparators and demonstrate disparate treatment.
- Loan Settlement Claim
The claim that the employer ought to have settled the Claimant’s outstanding loan with NCBA was also dismissed. The Retirement on Medical Ground Policy did not impose such an obligation on the employer.
Obiter Dictum: Missed Opportunity to Claim for Work Injury
Interestingly, the Court observed that the Claimant might have been better served by pursuing a claim for damages arising from a workplace injury. The judge referenced Kathambi v Safaricom Limited [2023], where the Court awarded Kshs. 2.5 million in general damages for a similar work-related condition.
Key Takeaways for Employers and HR Practitioners
- Valid Reason + Fair Process = Lawful Termination
Medical incapacity is a valid reason for termination, but the employer must still follow due process as outlined in Section 41 of the Employment Act.
- Reasonable Accommodation is Required
Before termination, employers must consider whether the employee’s condition can be reasonably accommodated, through modified duties, adjusted schedules, or workstation adjustments, without incurring undue hardship.
- Documentation and Communication Matter
Employers should document medical evaluations, communications with the employee, invitations to hearings, and the employee’s right to be accompanied. These are critical in defending any claims of unfair termination.
- Avoid Blanket Discharge Agreements
Discharge vouchers must be clear, unambiguous, and voluntarily signed. Courts have increasingly scrutinized such waivers for fairness and clarity (Coastal Bottlers v Kimathi Mithika [2018] KECA 523).
- Discrimination Requires Evidence
Allegations of discrimination must be substantiated with evidence of differential treatment among similarly situated employees.
Conclusion
The Ndung’u case is a cautionary tale for employers considering termination on medical grounds. The decision affirms that compassionate grounds do not override legal obligations. As the Court aptly put it, when illness strikes, the employer must respond with both empathy and compliance.
This alert is for information purposes only and is provided for general purposes only and does not constitute legal advice. Should you have any questions or need legal advice, please contact us on info@jkkibicho.co.ke.
Contributors:
Caroline Njari-Principal Associate
Docxl Oguta-Advocate Trainee
