Introduction

Mental health in the workplace is no longer a peripheral issue in employment law. Courts are increasingly examining how employers respond to employees facing psychological challenges, particularly where disciplinary action is involved. A recent decision of the Employment and Labour Relations Court (ELRC) highlights a key principle: compliance with procedure alone is not enough,employers must ensure substantive fairness where mental health is concerned.

In AWW (Suing as Next Friend and Mother of GWW) v Central Bank of Kenya [2024] KEELRC 13585 (KLR), the Court considered whether an employer acted lawfully in terminating an employee with a known mental illness following a disciplinary process. The decision underscores the growing expectation that employers must go beyond formal compliance and actively accommodate vulnerable employees.

Background of the Case

The claimant filed the suit on behalf of her daughter, who had been employed by the respondent since 2009. During her employment, the employee developed mental health conditions, including bipolar mood disorder and schizoaffective disorder. These conditions were documented and known to the employer.

Over time, the employee began experiencing workplace challenges, particularly absenteeism linked to her condition. The employer initiated disciplinary proceedings, issued notices to show cause and convened a disciplinary hearing. In 2020, her employment was terminated on grounds of gross misconduct.

The claimant argued that the termination was unfair and discriminatory, stating that the employer failed to consider the employee’s mental condition, did not provide reasonable accommodation and subjected her to a process she could not meaningfully participate in.

What the Law Provides on Fair Termination and Disability

Kenyan law requires both procedural and substantive fairness in termination. Section 41 of the Employment Act mandates that an employee be given a fair hearing, including an opportunity to respond to allegations.

Additionally, Article 27 of the Constitution guarantees equality and freedom from discrimination, while section 5 of the Employment Act prohibits discrimination in employment.

Together, these provisions impose a duty on employers not only to follow due process but also to take into account the specific circumstances of employees, particularly where disability is involved.

What Happened in Practice

The employer maintained that it had supported the employee through medical care and counselling and that it followed due process in terminating her employment. It argued that the employee had moments of lucidity and was therefore capable of participating in the disciplinary process.

However, the Court identified a critical gap. While a disciplinary process was conducted, there was no medical evidence confirming that the employee was mentally fit to understand or respond to the allegations at the time.

The Court emphasized that a fair hearing must be meaningful. It is not enough to issue notices and conduct a hearing; the employee must be in a position to comprehend and defend themselves. Subjecting a mentally unwell employee to such a process without confirming their capacity rendered the process unfair.

Reasonable Accommodation: A Legal Duty

A central issue in the case was whether the employer fulfilled its obligation to provide reasonable accommodation. While the employer facilitated medical treatment, the Court found that this did not go far enough.

Reasonable accommodation requires practical workplace adjustments, such as modifying duties, reducing workload or transferring the employee to a less stressful role. Evidence showed that the employee’s condition may have been worsened by her work environment, yet no meaningful adjustments were made.

The Court reiterated that employers must investigate the extent of an employee’s incapacity and explore alternatives to dismissal. Failure to do so may amount to discrimination.

The Court’s Determination

The Court held that the termination was both unfair and discriminatory. It found that:

• The disciplinary process was flawed due to the employee’s mental incapacity;
• The employer failed to provide reasonable accommodation; and
• The employee was treated in a discriminatory manner due to her mental condition.

The Court awarded compensation equivalent to 12 months’ salary for unfair termination and Kshs 4,000,000 as damages for discrimination, totaling Kshs 5,008,000 plus costs and interest.

Implications for Employers

This decision reinforces that mental health must be treated as a serious workplace issue with legal consequences. Employers must ensure that disciplinary processes are not only procedurally correct but also fair in substance.

Where an employee’s mental capacity is in question, employers must assess their ability to participate in proceedings and consider adjustments. Additionally, the duty to accommodate requires proactive steps to adapt the work environment to the employee’s condition.

Failure to meet these obligations may expose employers to liability for both unfair termination and discrimination.

Conclusion

This case highlights a shift in employment law towards a more nuanced understanding of fairness. Employers are required to move beyond rigid procedures and adopt a more responsive approach where mental health is concerned.

Ultimately, true compliance lies not just in following the law, but in applying it in a manner that protects the dignity and rights of all employees, particularly those who are most vulnerable.

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