Thuo Ditsele (HR Consultant) and Tumisang Bagidi (Lead HR Consultant)
One of the important developments under the Employment and Labour Relations Act is that it has reinforced a principle that has existed in Botswana labour law for years: employees should not lose employment simply because they become ill or experience reduced capacity to work without a fair process being followed. Although the Act now speaks more directly to physical and mental incapacity, the idea itself is not new. It has long existed under the Code of Good Practice and Model Procedures and Agreement, particularly Clause 9.7, which provides that dismissals arising from ill health or injury must follow the procedure set out under Clause 11, dealing with fair process.
The Law
Section 163(5)(b) of the Act now gives this principle stronger legislative expression. The section provides that an employer may not terminate employment for reasons related to capacity, including physical or mental incapacity to perform work, unless certain procedural and substantive requirements have been met.
Firstly, the employer must investigate the extent of the incapacity. This means an employer cannot assume that because an employee is absent frequently, appears emotionally distressed, receives treatment, or has become medically unfit, termination automatically follows. The employer must understand the actual nature of the incapacity and whether it genuinely affects the employee’s ability to perform the essential requirements of the role.
Secondly, the Act requires that a medical doctor issue a medical certificate confirming the incapacity. This shifts the assessment away from assumptions and places reliance on professional medical opinion. Importantly, this applies equally whether the issue relates to physical illness or mental health conditions. Employers should therefore be cautious not to dismiss workers based on observations, rumours, discomfort, or management conclusions unsupported by medical evidence.
Thirdly, and perhaps most significantly, the employer must consider alternatives to termination. The law specifically refers to adapting work circumstances to accommodate the worker’s inability to work. This introduces a broader workplace obligation. Questions employers should ask include: Can duties be modified? Can working hours be adjusted? Can temporary reassignment be considered? Is remote work possible? Can phased return-to-work arrangements assist recovery? Only after exploring these alternatives should termination become a consideration.
The Act then introduces an equally important procedural safeguard. Section 163(5)(b)(ii) requires that the worker be given an opportunity to respond and to be assisted by a co-worker of their choice or a trade union representative. This is significant because it reinforces that incapacity dismissals are not administrative exercises, they require procedural fairness.
This means what many organisations commonly call “medical offboarding” should not bypass fair hearing principles. While incapacity is not misconduct, the employee must still be informed of the concerns, allowed to engage with medical findings, discuss accommodations, and present alternatives before a final decision is made. This is consistent with the long-standing approach under the Code of Good Practice and Model Procedures and Agreement: dismissals due to ill health or injury must follow a fair procedure.
