Termination on Medical Grounds in Kenya: Can Your Employer Dismiss You for Being Sick?

If you are too unwell to work, losing your job may be a serious concern. This guide explains what may happen when sick leave is exhausted, what an employer should consider before ending employment on medical grounds and practical steps you can take if you are told to retire. I’m Ashley Karimi Chege, an Advocate of the High Court of Kenya.

Can my employer dismiss me for being sick in Kenya?

Article 27 of the Constitution protects equality and freedom from discrimination, including on grounds such as health status and disability. Section 5 of the Employment Act also prohibits discrimination in employment on listed grounds, including disability. A health condition does not automatically mean a person has a disability, and the legal questions depend on the facts and applicable law.

For related workplace protections, see our guide to pregnancy discrimination and employee rights.

If the condition may qualify as a disability, additional protections may apply under the disability laws in force. Whether they apply depends on the statutory definitions and the facts, so do not assume that a long illness automatically meets the legal definition of disability.

What happens when my sick leave runs out?

Section 30 of the Employment Act provides at least seven days of sick leave with full pay, followed by seven days with half pay, after two consecutive months of service, subject to its conditions. A contract or collective agreement may provide better terms. Exhausting sick leave is not a substitute for assessing your medical situation or following a fair termination process.

See our guide to medical cover and sick leave for more about medical benefits and leave.

What should my employer consider before ending my job?

1. Discuss possible adjustments. Depending on the job and the medical advice, this could include modified tasks, equipment, changed hours or another suitable role. What is reasonable depends on the circumstances; not every change will be possible in every workplace.
2. Use relevant medical evidence. Evidence should address the employee's condition, work limitations, likely recovery and whether adjustments could help. There is no general statutory rule requiring exactly three medical reports. A report should be considered for its relevance and basis, not simply counted.
3. Consider the evidence and alternatives. The employer should not ignore medical advice that an employee can return with lighter or adjusted duties. Ask for the proposed decision and relevant information in writing.
4. Only then assess whether employment can continue. If the evidence indicates the employee cannot perform the job even with reasonable adjustments, the employer should still follow the required fair procedure before deciding.

Medical opinions can differ. The relevant questions include whether the assessment is current, sufficiently specific to the employee's work and considered alongside possible adjustments.

What process does section 41 require?

Section 41 of the Employment Act sets out hearing and explanation requirements before termination for misconduct, poor performance or physical incapacity. The employer must explain the reason in a language the employee understands and allow the employee to have another employee or a shop-floor union representative present during the explanation. The employer must hear and consider the employee's representations and those of the companion.

A notice to show cause, an internal appeal or a specific form of termination letter may be part of workplace policy or good HR practice, but the statutory wording is the key starting point. Keep the notices, your response and any meeting record.

What does the Rea Vipingo case show?

In Kenya Plantation and Agricultural Workers Union v Rea Vipingo Plantations Limited & another, a worker with a hernia returned to physically demanding work after surgery. The case concerned whether his medical condition and the way his employer handled his return and subsequent retirement were fair. The court ordered reinstatement on lighter duties for a period with medical review.

The case is not a rule that every medical termination has the same outcome. The employer's assessment, the available work and medical evidence in an individual matter all remain important. Its citation is listed below; for related employee guidance on medical benefits and leave, see our medical cover and sick-leave guide.

What if my employer skips the required steps?

Sections 45 and 49 of the Employment Act address unfair termination and remedies. Depending on the circumstances, a court may award compensation or consider reinstatement, subject to statutory factors and limits. Section 90 generally sets a three-year limitation period for a civil claim or contract complaint based on the Employment Act, but specific facts can affect limitation. Get prompt legal advice rather than waiting until a deadline is close.

Other practical routes include contacting a labour officer or getting advice about a claim in the Employment and Labour Relations Court.

What should I do if my employer says I must retire?

1. Ask for the proposed reason and relevant medical information in writing.
2. Speak with your doctor about your current work capacity and possible adjustments.
3. Request suitable adjustments in writing and explain how they may help.
4. Attend the hearing and ask to be accompanied as allowed by section 41.
5. Keep copies of messages, reports, leave records, payslips and meeting notes.
6. Get timely advice before signing a resignation or settlement.

What warning signs should I watch for?

• You are told to retire based on a brief or unexplained report.
• Medical advice about modified work is ignored without explanation.
• No one discusses possible adjustments or other suitable work.
• You are not told the proposed reason or given a chance to respond.
• You are pressured to resign or sign a document immediately.

What evidence should I keep?

• □Sick-leave records and medical certificates
• □Medical assessments and recommendations about work adjustments
• □Written requests for adjustments and the employer's replies
• □Notices, responses, meeting notes and termination letters
• □Payslips and any calculation of terminal dues
• □A copy of your certificate of service, if issued

Frequently asked questions

Legal sources cited

• Employment Act, 2007, including sections 5, 30, 41, 45, 49, 51 and 90.
• Constitution of Kenya, Article 27.
• Kenya Plantation and Agricultural Workers Union v Rea Vipingo Plantations Limited & another, Cause 563 of 2015.

Related guides on this site

• Medical cover and sick leave in Kenya
• Pregnancy discrimination and employee rights

This article is general information, not legal advice. Your situation may differ. For advice on your own case, speak to a qualified advocate or your county labour office.