Medical Board Out

Medical Board Out” refers to a situation where the affected employee is sufficiently incapacitated due to a medical illness or disability, rendering them unable to fully and/or satisfactorily perform their job, leaving the employer with little or no option but to terminate the employee on the basis of medical grounds.

An employer may terminate the employee’s services if it can be proven that the illness/disability has severely curtailed the ability of the employee to perform his job and recovery is unlikely.

The considerations should be taken into account by an employer are the following (note this is not exhaustive):-
1) Has the illness/disability severely curtailed the ability to perform his job?
2) Is recovery likely? If so, when, and to what extent?
3) Can the employer wait any longer and for how much longer?
4) What is the illness?
5) What is the job function?
6) What is the period of absence?
7) Has the absence impacted the company/other employees?
8) Has there been meeting(s) with the affected employee, apprising him of the difficult circumstances?
9) Is there an attempt to accommodate the employee by offering an alternative role?

The employer must show that they have thoroughly taken the various factors into consideration and that based on the information they have compiled, the decision was made to terminate the employee. The Court may hold a termination to be unfair if an employer is shown to not make the sufficient and necessary enquires on the illness of the employee and merely terminates, based on the assumption that the illness was permanent in nature.

For employees covered under the Employment Act 1955, there are provisions relating to statutory sick leave and hospitalization leave. There are however no provisions for the minimum requirements of a medical board out procedure. As such, a medical board out procedure is a matter of contract between the employer and employee, and/or based on the company’s policies and procedures, if any.

A proper medical board out procedure/meeting, to be adopted by the employer for all affected employees is ideal as it would help establish that due consideration, with all regard to the surrounding circumstances, were taken into account before a decision was made to terminate. This helps in demonstrating that termination was not made on a whim.

Do note that the employee may be eligible for termination benefits (if protected by EA or if your internal T&Cs provide such benefits), any utilised annual leave, any other benefits or allowances payable under his contract and notice period.

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