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ELRCPartially AllowedCause No 60 of 2013· [2013] KEELRC 573 (KLR)

A M M v Spin Knit Limited [2013] KEELRC 573 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
4 October 2013
BOByram Ongaya
3,421 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's employment court awarded Kshs.641,568 to a worker fired after refusing forced HIV testing, ruling employers can never compel medical tests or reveal health status.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 1.9.1997 (confirmed permanently in 2001), was summarily dismissed by letter dated 1.9.2009 for absence and refusal to resume duty after being instructed to take light duties. He claimed notice pay, leave, off-days, severance, gratuity, medical refunds, travel costs and 12 months' wages for unfair dismissal, plus an order compelling the respondent to complete medical occupational assessment forms. He testified that after a serious criminal attack in December 2005, the respondent failed to support his medical needs, assigned heavy instead of light duties, and later designed a forced HIV-AIDS testing scheme, locking him out when he refused to produce a test result. The court framed four issues. On privacy, it found the forced HIV testing scheme proved (unrebutted by the respondent's witnesses), breached Article 31(c) of the Constitution and section 5(3) of the Employment Act, and awarded Kshs.500,000. On the reason for termination, it found the respondent's account not believable and held the real reason was refusal to produce the forced test report, entitling the claimant to treat himself as constructively terminated. On procedure, it held that termination on ill-health grounds requires the section 41 process of notice, medical assessment, hearing and reasoned decision, and articulated the principle that absent contrary agreement the employee is entitled to recover or die in service. On remedies, it awarded one month's notice pay, leave and off-days, medical refunds and travel costs, and 12 months' gross salary, but refused severance (no redundancy) and gratuity (NSSF member). Judgment of Kshs.641,568.40 was entered for the claimant, with an order to complete the medical forms and costs against the respondent.

Key legal issues

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01

Whether the forced HIV-AIDS testing invaded the claimant's privacy

Holding

Yes - the respondent designed and implemented a forced HIV testing scheme, breaching Article 31(c) of the Constitution and section 5(3) of the Employment Act; awarded Kshs.500,000 as compensation.

Reasoning

The respondent called no witness to rebut the claimant's vivid account of being bundled into a VCT for mandatory testing. Privacy under Article 31(c) includes the right not to have private health information unnecessarily required or revealed. Such forced testing also discriminated on HIV status contrary to section 5(3). The court awarded damages considering pain, suffering and anxiety.

p. 4
02

Whether there was a fair reason for termination

Holding

No - the real reason was the claimant's refusal to produce the forced HIV test report, which was not a fair reason and constituted a valid grievance under section 46(h).

Reasoning

The respondent pleaded absence from duty and refusal to work but called no evidence to establish these allegations, and no proof of service of a show-cause letter. The court found the respondent's account not believable and held the constructive lock-out amounted to constructive termination for an unfair reason.

p. 5
03

Whether due process under section 41 was accorded

Holding

No - termination on grounds of ill-health/incapacity required the section 41 procedure of notice, medical assessment, hearing and decision, which the respondent ignored.

Reasoning

The court set out a four-step procedure for ill-health separations: notice in a language the employee understands; medical examination before a professional or board; hearing representations on the medical certificate; and a decision taking both into account. The respondent instead opted to victimise the claimant, culminating in constructive and unfair termination.

p. 6
04

Remedies

Holding

One month notice pay, unpaid leave, off-days, medical refunds and travel costs, 12 months' gross salary for unfair termination, plus an order to complete medical assessment forms; severance and gratuity refused.

Reasoning

The court quantified each head on the evidence, awarding 12 gross salaries at Kshs.9,583 per the August 2009 pay slip for unfair termination, and the constitutional damages of Kshs.500,000, aggregating to Kshs.641,568.40 payable by 1.12.2013 with interest in default.

p. 6

Legal principles established

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  • An employer must never force an employee to undergo a medical examination or to present medical reports exposing his health status; forced HIV-AIDS testing infringes privacy under Article 31(c) and constitutes discrimination under section 5(3) of the Employment Act.
  • Termination on account of ill-health must follow the section 41 procedure: notice, medical assessment, hearing of representations and a decision taking both into account.
  • Absent a prior agreement, an employee who cannot follow separation proceedings due to ill-health remains in employment until recovery - the employee is entitled to recover or die in the service.
  • Locking an employee out for refusing to produce a forced HIV test result entitles him to treat himself as constructively and unfairly terminated.

Court orders

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  1. 1.The respondent to pay the claimant Kshs.641,568.40 by 1.12.2013, failing interest at court rates from the date of judgment till full payment.
  2. 2.An order that the respondent complete and submit relevant medical occupational assessment forms to enable the claimant access compensation for the injuries sustained.
  3. 3.The respondent to pay costs of the case.

Authorities

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Legislation

  • Constitution of KenyaArticle 31(c)
  • Employment Act, 2007Sections 5(3), 35, 35(6), 40, 41, 42(1), 44(4)
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "A M M v Spin Knit Limited [2013] KEELRC 573 (KLR)", Case Analysis (2013). Cause No 60 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/573/eng@2013-10-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.