Is a contractual provision regarding medical examination automatically valid?
It often happens that employers include provisions in their employment contracts in terms of which the employee agrees in writing and explicitly that he or she would undergo medical examination if so required by the employer. However, we regularly receive enquiries dealing with a situation where an employer, without sufficient reason, requires an employee to consult a doctor for a diagnosis or a report to assess whether the employee is fit for work. In some instances, employees are threatened with disciplinary action which could even result in dismissal should they fail to comply. In this article we will consider an example where the Labour Court dealt with this issue.
In EWN v Pharmaco Distribution (Pty) Ltd (2016) 377 ILJ 449 (LC) the employee disclosed her bipolar disorder to her managers during a disciplinary process. Bipolar mood disorder is a condition characterised by mood swings that range from extreme depression to extreme mania. The employer then insisted that the employee see a psychiatrist to assess her fitness for her work.
In her contract of employment, the employee agreed to undergo medical examination should the employer deem it necessary:
The employee will, whenever the company deems necessary, undergo a specialist medical examination at the expense of the company, by a medical practitioner nominated and appointed by the company. The employee gives his/her irrevocable consent to any such medical practitioner making the results and record of any medical examination available to the company and to discuss same with such medical practitioner. The above shall include and apply to psychological evaluations.
Despite the contractual provision the employee refused to submit herself to medical assessment on the grounds that the instruction was unlawful. The employer subsequently dismissed her on the grounds of grave and repeated refusal to obey an alleged lawful instruction.
In terms of section 7(1) of the Employment Equity Act (No 55 of 1998) (the “EEA”) medical testing of employees is prohibited unless permitted or required by law, or unless it could be justified in the light of medical facts, working conditions, social policy, the equitable sharing of benefits, or the inherent requirements of a job. This section makes no provision whatsoever for an exception based on the employee’s consent. The onus rests on the employer to prove the circumstances that would justify examination, failing which examination would be inadmissible.
The court ruled that the employee’s dismissal was automatically unfair under section 187(1)(f) of the Labour Relations Act (No 66 of 1995) and that the employee’s contractual provision was inconsistent with section 7 of the EEA and was thus not valid and lawful. The court also ruled that the instruction to undergo assessment by a psychiatrist because of her condition unfairly discriminated against the employee.
It is clear from the foregoing that no agreement in respect of medical assessment that is inconsistent with legislation is valid. Employees must take note of the fact that they may not just be subjected to medical examination by their employer without compliance with very specific requirements. On the other hand, employers must be aware of the fact that such actions are unfair and could have serious consequences for them.
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Author: Ettienne Pio