Is it discrimination for an employer to force an employee to undergo a medical examination where the employee is suffering from a bipolar disorder, and where the employee has consented, in a contract of employment, to undergo such a medical examination at the company’s expense?
This was one of a number of questions decided by the Labour Appeal Court in the matter of Pharmaco Distribution (Pty) Ltd v EWN (2017) 38 ILJ 2496 (LAC),
The brief facts of the case were the following:
The employee had queried calculations in regard to her commission calculations. As a result of her dealings with various staff members in her efforts to resolve her complaints about the commission payments, the employee was charged with, inter alia, insolence and insulting behaviour, willful refusal to carry out a lawful instruction or to perform her duties, intimidation of fellow employees, and damaging the reputation of the employer. The employee was then issued with a final written warning.
The employee mentioned to her employer that she was suffering from bipolar depression and was subsequently placed on immediate suspension and issued with a letter advising that her recent behaviour had given rise to ‘serious concern’, and accordingly, the employee was instructed to attend a medical examination with a psychiatrist.
The employee refused to do so and was dismissed as a result of such refusal.
The employee then proceeded with a claim that the instruction was unlawful and was an act of unfair discrimination based on disability amounting to an act of harassment.
Her employer, on the other hand, contended that the instruction was both reasonable and lawful, as the employee had consented to undergo medical examinations in terms of a clause in her contract of employment, and it was necessary for her to undergo such examination because the employer could not risk employing someone in the position if there was any question about her ability to remain mentally stable in order to cope with the demands of the job.
The spotlight to unlocking the problem was thus on s7 of the Employment Equity Act 55 of 1998 ( “the EEA”).
s7 of the EEA provides :
- Medical testing of an employee is prohibited, unless-
- legislation permits or requires the testing; or
- it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job.
In so far as the employer’s contention was concerned, viz. that the employee had consented to the medical testing in terms of the contract of employment, the court found that an employee’s consent was not in itself sufficient to permit an employer to conduct a medical test.
The court also found that in regard to the medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job, that the employer’s argument that the employment conditions justified the psychiatric examination because it could not risk employing someone in the position if there was any question about her ability to remain mentally stable, that what had triggered the employee’s outburst had nothing to do with the performance of her duties, but rather arose out of her dispute over her remuneration.
The court was thus satisfied that the instruction to the employee to undergo a psychiatric examination was prohibited by s7 of the EEA, and therefore the clause in the contract was unlawful and therefore unreasonable and unenforceable.
Turning to whether the company had unfairly discriminated against the employee and whether her dismissal was thus automatically unfair within the meaning of s 187(1)(f) of the Labour Relations Act, the court observed that the employee was required to undergo testing on account of senior management becoming aware of her bipolar status, and that, but for her bipolar condition, she would not have been required to undergo a medical examination, and that the employer had discriminated against the employee and her dismissal was thus automatically unfair.
The act of requiring the employee to submit herself to an examination was also an act of unfair discrimination in terms of s 6 of the EEA.
In determining the amount of compensation that the employee should be awarded, in addition to other factors considered by the court, it was found that because the employee had performed at a superior level; that employers must be deterred from acting the way that the employer had acted, and that the company had tried to manipulate the employee’s medical condition to secure her dismissal, the employee was awarded an amount of R285,000 as compensation for her automatically unfair dismissal, which was more than 12 months’ salary.
In relation to an award for the claim under the EEA, it was held further that as the claims the employer to award both damages and compensation to the employee for the same wrongful conduct of the company would not be just and equitable as it would amount to penalising the employer twice.
The above matter again highlights the importance, from the perspective of both an employer and an employee, of getting expert legal advice to know what is and what is not permissible in law.