The Star (Nairobi)

29 October 2013

Kenya: Staff Can't Be Forced to Undergo Medical Exams

The industrial court at Nakuru has ruled that an employer should never force an employee to undergo a medical examination or to present medical reports that exposed the employee's health status which the employee was entitled to hold in their privacy.

Justice Ongaya held that termination of employment based on refusal to undergo mandatory testing and production of test results did not constitute a fair reason for termination or imposition of a penalty under section 46 (g) of the Employment Act, 2007. The ruling was as a result of a claim by the claimant against Spin Knit Limited (respondent) seeking inter alia, a declaration that they were unfairly terminated by Spin Knit Limited.

The claimant had been employed as a machine operator by the Spin Knit. On December 9th, 2005 at 10.05 pm while walking from work to his home, he was attacked by thugs and seriously injured. Spin Knit had not provided him with transport that night because, according to the claimant, the place he resided at was near the claimant's work place and therefore transport was not necessary under Spin Knit's operational policies.

The claimant's lower jaw was dismembered and was thereby hospitalised, throughout which Spin Knit did not take any steps to assist the claimant.

The claimant, upon return to work, presented to the Spin Knit's personnel office a medical prescription for light duty and the evidence of the medical costs he had incurred. He was however neither assigned light duty nor did Spin Knit act to meet his medical costs. Further Spin Knit refused to complete relevant forms provided by the labour officer to enable him access compensation for the injuries he had sustained. Spin Knit instead deployed the claimant from an automatic to manual machine with the consequence that the claimant's health deteriorated and he further developed bronchitis.

Subsequently, Spin Knit's management demanded that the claimant went for mandatory HIV-AIDs testing, which he did not undergo. Spin Knit thereafter gave instructions that claimant was not to be allowed into its premises unless he produced his HIV-AIDs status test. The claimant was eventually issued with a termination of employment letter on account of absence without permission or reasonable cause.

The issues before the court were Whether an employer could compel an employee to go for HIV-AIDs testing.

Whether an employer could force an employee to undergo medical examinations or to present medical reports that exposed the employee's health status.

Whether the termination of employment based on an employee's refusal to undergo mandatory HIV-AIDs testing and produce the results to the employer was unfair and contrary to the Employment Act.

Whether the requirement that an employee provided an employer with results of medical examinations conducted on them was in violation of the employee's right to privacy.

What was the proper procedure for termination of employment on account of ill-health. The court found that it was right in law that one could not be sacked from their place of employment on grounds of race, tribe, financial status, HIV status or disabling reference as per section 46 (g) of the Employment Act. It was therefore unfair for the respondent to have forced the claimant to undergo HIV-AIDs testing.

Section 5(3) of the Employment Act provides that no employer shall discriminate directly or indirectly against an employee or prospective employee, amongst other grounds, on the ground of HIV status, and, in respect of recruitment, training, promotion, terms and conditions of employment or other matters arising out of employment. The respondent's deliberate design to force the claimant to undergo HIV-AIDs testing was not only an unfair intrusion of the claimant's privacy but was also carefully calculated to discriminate against the claimant in the respondent's undertaking of the human resource functions in its establishment.

Article 31(c) of the Constitution provided that every person had the right to privacy which included the right not to have information relating to their family or private affairs unnecessarily required or revealed.

It was therefore unfair for an employer to intrude into the health status of an employee or prospective employee in a manner that did not justify breaches of the doctor-patient confidentiality.

Where the health status of an employee or a prospective employee had a bearing on the required qualifications or job specifications, it was sufficient for the employer to receive the doctor's certificate of fitness without disclosing the full medical report that infringed the employee's or prospective employee's health status.

Where an employer needed an employee's medical reports for the employee's benefit such as provision of medical support in exceptional circumstances or to make exceptional human resource decisions, it was vital that the employer highly restricted the disclosure of the medical report and held it in high confidence that protected the employee's privacy and therefore human dignity.

The employer ought to never force an employee to undergo a medical examination or force the employee to present medical reports that exposed the employee's health status that the employee was entitled to hold in their privacy. The procedure applicable in event of removal on account of ill-health was section 41 of the Employment Act. An employer who desired to terminate an employment contract on account of the employee's ill-health had to give the affected employee the relevant notice and a hearing. The process had to uphold due process of fairness entailing the following procedure.Firstly, a notice to the employee, in a language that the employee understood, that it was intended to terminate the employee's contract of employment on account of ill-health.

Secondly, requiring the employee to present himself or herself before a medical professional or board to facilitate a medical certificate for fitness or lack of it for continued employment;.

Thirdly, the employer hearing the employee's representations in view of the medical certificate of fitness or unfitness and fourthly, the employer making a decision to terminate the employee or to retain the employee taking into account the medical certificate of fitness or unfitness and the employee's representations at the hearing.

An affected employee was entitled under section 41 of the Employment Act to follow the proceedings, where the employee could not follow the proceedings because of ill-health, the employee was entitled to remain in the service of the employer until recovery or when they regained capacity to follow the proceedings, unless the parties had a prior agreement on the separation arrangements that would apply in the event an employee, on account of ill-health, was not able to follow the separation proceedings under section 41. Such prior arrangements would need to carefully provide for a balancing effect to give the employee the best chance possible to recover and resume employment while at the same time enabling the employer to mitigate productivity concerns in the event of the employee's unreasonably long absence from work in view of the illness.

In the instant case, the respondent decided not to follow the clear provisions of section 41 of the Act and instead opted to victimize the claimant and designed to infringe upon the claimant's privacy by designing the forced HIVAIDs testing, which culminated into the claimant's constructive dismissal. Judgment was entered for the claimant and the respondent was ordered to pay costs.

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