Have you ever wondered if you can be fired as a result of your ill health?

Maybe you’ve heard the term “medically boarded” and wondered what does it mean and if it could affect you?

The reality is that no one ever knows what the future holds, especially when it comes to our physical well-being.

What if an incident unrelated to your job severely changed your state of being? What would that mean for your job?

Each of our jobs requires some special use of our senses: sight, sound, touch, taste and smell, without them it is unlikely that we will be able to perform at the level we were once capable of.

What happens then? Is your boss entitled to fire you? Do you have any rights in such a situation?

In the Caribbean, the law in this regard is strongly influenced by the principles of common-law, meaning there is no exact piece of legislation, but rather, the law is developed through cases brought before the court.

The Industrial Court would be called upon to determine whether “termination of the worker’s employment by the employer on medical grounds was harsh, oppressive and contrary to good industrial relation practices.”

The first thing to be determined is the worker’s true medical condition. This process requires an employee to be consulted, and comprehensive medical reports from competent specialists/doctors to be provided.

Does the case law require the employee’s consent in order to terminate?

Quite simply, the answer is NO.

The purpose of a consultation is not to obtain the worker’s consent or objection to the recommendation of medical boarding but is required “apart from considerations of general courtesy, the reason for this is to secure that the situation can be weighed up, balancing the employer’s need for the work to be done on the one hand, against the employee’s need for time to recover his health on the other” per the authority of A Links & Co. Ltd v Rose [1993] S.L.T. 209.

Consultation is a pillar requirement of good industrial relations practices. It compels an employer to engage with an employee before making any decisions that can adversely affect that employee. In essence, the employee cannot be blindsided. There must be openness and frankness between parties.

The medical findings are also discussed as a part of the consultation process. The employee and employer can agree on a specialist to assess the employee or provide a second opinion or an agreement between them on the findings.

Case law does require medical findings to be clear and unbiased.

For example, in the Trinidadian case of TD 084 of 2014 Oilfield Workers Trade Union v T&TEC, an employee was terminated based on the opinion of the company’s general practitioner. The Court concluded that a more comprehensive report was necessary since the worker had submitted two fit for work certificates and was assessed by two specialists who concluded that the worker was not an invalid and was fit to work subsequent to his boarding. After medical opinions have been obtained and the parties have engaged in consultation, what’s next?

The employer must then ask himself, “what’s a reasonable course of action in this circumstance?”

Bearing in mind that the employer does owe his employee a common law duty of care, meaning that if the employer disregards the medical opinions, allows the employee to continue working, and that employee is then injured, the employer becomes liable to pay the employee.

It’s a fine line that the employer and employee must walk to ensure everyone’s best interest.

In the Trinidadian case of Special Tribunal No. 7 of 2009 Estate Police Association v National Maintenance Training and Security Company Limited, the Court found that one meeting with an employee and failing to provide financial assistance for getting the necessary medical tests when the employee lacked the means, was not acting reasonably. The Court noted that the employer should obtain medical advice to determine the employee’s fitness. Medical advice, though, should not only come from the employee’s personal physician but from the employer’s physician, as well as an independent medical specialist when the parties disagree.

Finally, the employer must demonstrate that efforts were made to determine whether the employee could be accommodated elsewhere in the operations in light of the medical diagnoses. However, in the 1991 case of Oilfield Workers Trade Union v T&TEC, the Court made it clear that despite the employer’s moral obligation to assist an employee in such circumstance, that obligation does not require the employer to create a post where none exists or assign the employee to a post for which he lacks the skills or to assist where the risks are grave.

In conclusion, whilst an employee can be terminated due to ill health, the employer must act in accordance with the principles of good industrial relations practices and as any other reasonable employer would. In summation, prior to terminating an employee for ill health, the employer must:

  • determine the employee’s true medical condition;
  • engage in consultation with the employee;
  • act fairly towards the employee;
  • and consider whether alternative work arrangements can be made in light of the medical diagnosis.