Section 7(1) of the Employment Equity Act, 1998 ("EEA") prohibits medical testing of an employee unless the legislation permits or requires the testing or it is justifiable in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job.

Recently, in Pharmaco Distribution (Pty) Ltd v Weideman (JA104/2015) [2017] ZALCJHB 258 (4 July 2017), the Labour Appeal Court had to determine whether the provisions in Ms Weideman’s contract of employment requiring her to undergo medical testing are enforceable.

Ms Weideman was a sales representative. She claimed that her dismissal for failing to submit to a medical examination on her employer's instruction was automatically unfair.

Ms Weideman’s contract of employment was central to the issue. It provided that: “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 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.”

After Ms Weideman had lodged a formal grievance regarding the calculation and late payment of her commission, which was addressed by Pharmaco, Pharmaco’s CEO wrote to Ms Weideman and regarding a statement she had made to her managers that she suffered from bipolar depression. The CEO instructed Ms Weideman to undergo a medical examination by a psychiatrist, who would then advise Pharmaco on whether Ms Weideman was fit to perform her duties without there being any risk to herself or the lawful and legitimate interests of Pharmaco. The CEO also warned Ms Weideman that her failure to undergo the examination would “constitute a serious offence” and would be dealt with as a disciplinary breach.

In response to the CEO’s instruction, Ms Weideman’s attorneys wrote to Pharmaco calling on Pharmaco to withdraw the instruction, failing which Ms Weideman would launch an application to the Labour Court to interdict it. Ms Weideman’s counselling psychologist also wrote to Pharmaco stating that Ms Weideman suffered from bipolar disorder, she was in therapy, she was medication compliant, and there was no reason why her condition should affect her work effectiveness.

Ms Weideman did not attend the assessment with a psychiatrist as instructed and Pharmaco subsequently dismissed her. In the Labour Court, Pharmaco argued that its decision to insist on a psychiatric assessment of Ms Weideman was justified because:

  1. Ms Weideman consented to undergoing a medical test when reasonably required to do so by the company in her employment contract; and
  2. Ms Weideman’s behaviour and disclosure of her bipolar condition made insistence on such an assessment reasonable.

The Labour Court was not persuaded by Pharmaco’s argument. The Labour Court reiterated that section 7(1) of the EEA prohibits medical testing of an employee unless permitted or required by legislation 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.

The Labour Court found that Pharmaco had not met the requirements of any of the exceptions to the EEA’s prohibition of medical testing. It held that employee consent does not constitute an exception to the prohibition. On this basis, the Labour Court accordingly held that the clause in Ms Weideman’s contract was not permissible in terms of section 7 of the EEA and declared it unlawful and unenforceable. The Labour Court found further that Pharmaco had unfairly discriminated against Ms Weideman in instructing her to undergo a psychiatric assessment as the instruction only arose because of her bipolar condition. Consequently, Ms Weideman’s dismissal for refusing to accede to being tested found to be automatically unfair and Ms Weideman was awarded 12 months’ remuneration as compensation for her automatically unfair dismissal and an amount of R15 000.00 as damages for unfair discrimination.

Pharmaco took the judgment on appeal to the Labour Appeal Court, and Ms Weideman cross-appealed against the compensation and damages awarded.

The Labour Appeal Court found that it was abundantly clear from the evidence that but for Ms Weideman’s bipolar condition, she would not have been instructed by Pharmaco to undergo a psychiatric assessment and would not have been dismissed for refusing to do so. This, the Labour Appeal Court found, amounted to unfair discrimination on the grounds of disability. The Labour Appeal Court confirmed that “consent” is not a justification as contemplated in section 7(1) of the EEA. Therefore, an employer cannot rely on the employee’s consent in an employment contract to undergo medical testing as and when required to do so as justification.

On the question of the compensation and damages awarded to Ms Weideman, the Labour Appeal Court found that the Labour Court’s award of compensation was an insufficient deterrent to unfair discrimination and increased the compensation awarded to Ms Weideman from R222 000 to R285 000. However, it set aside the award of damages on the basis that this amounted to penalising the employer twice for the same wrongful conduct.

This decision demonstrates once again the strict approach the Labour Courts will take in finding contractual provisions discriminatory and so invalid. Any employer seeking to have an employee undergoing medical testing must ensure that such testing is clearly justified by the facts listed in section 7(1) of the EEA and not merely based on the consent in an employment the contract.