Discrimination against employees with disabilities remains a significant issue in Kenya. Despite legal protections, many individuals still face challenges in the workplace. This article explores the legal framework surrounding disability discrimination in Kenya, highlights relevant case law, and provides insights into the rights of employees with disabilities.
Legal Framework
Kenya has established a robust legal framework to protect employees with disabilities from discrimination. Key legislations include:
The Constitution of Kenya, 2010: Article 27 guarantees equality and freedom from discrimination, explicitly prohibiting discrimination on the grounds of disability.
Persons with Disabilities Act, 2003: This Act provides comprehensive rights and protections for persons with disabilities, including provisions for non-discrimination in employment.
Employment Act, 2007: Section 5 of the Employment Act prohibits discrimination in employment on various grounds, including disability.
Key Provisions
Reasonable Accommodation: Employers are required to make reasonable accommodations for employees with disabilities, unless doing so would cause undue hardship.
Equal Opportunities: Employees with disabilities must be given equal opportunities in recruitment, training, and career advancement.
Non-Discrimination: Employers must not discriminate against employees with disabilities in terms of pay, working conditions, or any other employment-related matters.
Relevant Case Law
The case of Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR) (22 October 2021) (Judgment) is a landmark judgement in Kenya that addresses the discrimination of employees with disabilities. This case highlights the legal obligations of employers to provide reasonable accommodations and the consequences of failing to do so.
Facts of the Case
Simon Gitau Gichuru was employed as an operations manager at Package Insurance Brokers Ltd. In 2009, he was diagnosed with a tumor and underwent treatment, which included surgery and chemotherapy. During his recovery, Gichuru’s mobility was significantly impaired, requiring him to use crutches.
Despite his condition, Gichuru continued to perform his duties. However, his employer asked him to take sick leave until he could move unaided. Gichuru provided a medical report indicating his ability to work with reasonable accommodations, but the employer suspended him and later dismissed him on grounds of gross incompetence.
Issues for Determination
The primary issues for determination in this case were:
Whether the dismissal of Simon Gitau Gichuru constituted discrimination on the grounds of disability.
Whether the employer failed to provide reasonable accommodation for Gichuru’s condition.
The appropriate remedies for the alleged discrimination and unfair dismissal.
Decision of the Court
The case progressed through various levels of the judiciary, culminating in a ruling by the Supreme Court of Kenya.
Trial Court: The trial court found in favor of Gichuru, ruling that his dismissal was discriminatory and unlawful. The court awarded him Kshs. 5,000,000 for discrimination and 12 months’ salary for unfair termination.
Court of Appeal: The Court of Appeal upheld the finding of unfair termination but ruled that there was no discrimination. The award for discrimination was set aside.
Supreme Court: The Supreme Court of Kenya ultimately ruled in favor of Gichuru. The court found that Package Insurance Brokers Ltd had discriminated against Gichuru by failing to provide reasonable accommodation for his disability. The Supreme Court reduced the award for discrimination to Kshs. 2,000,000.
Implications of the Case
The judgement in Simon Gitau Gichuru v. Package Insurance Brokers Ltd has far-reaching implications for employment law in Kenya:
Precedent for Non-Discrimination: The case sets a precedent for employers to ensure they do not discriminate against employees with disabilities.
Reasonable Accommodation: Employers are reminded of their obligation to make reasonable accommodations for employees with disabilities.
Legal Recourse: The case highlights the legal recourse available to employees who face discrimination.
Challenges and Opportunities
While Kenya has made significant strides in protecting the rights of employees with disabilities, challenges remain:
Awareness and Enforcement: There is a need for greater awareness and enforcement of disability rights among employers and employees.
Infrastructure and Accessibility: Many workplaces still lack the necessary infrastructure to accommodate employees with disabilities.
Cultural Attitudes: Changing cultural attitudes towards disability is essential for achieving true equality in the workplace.
Best Practices for Employers
1. Develop and Implement an Inclusive Policy
Employers should create and implement a comprehensive disability inclusion policy. This policy should outline the company’s commitment to non-discrimination, provide guidelines for making reasonable accommodations, and establish procedures for addressing disability-related concerns.
An inclusive policy helps set clear expectations and demonstrates the organization’s commitment to equal opportunity.
2. Provide Reasonable Accommodations
Employers are required to provide reasonable accommodations to employees with disabilities. This may include modifications to the physical workspace, adaptive technologies, or flexible work arrangements.
By proactively identifying and addressing accommodation needs, employers can ensure that employees with disabilities have the support necessary to perform their job effectively.
3. Conduct Regular Training and Awareness Programs
Training and awareness programs are essential for fostering a culture of inclusion. Employers should conduct regular training sessions for employees and management on disability rights, sensitivity, and best practices for working with colleagues with disabilities.
This helps create a supportive work environment and reduces the risk of discrimination.
4. Establish a Clear Grievance Mechanism
A transparent grievance mechanism allows employees to report discrimination or accommodation issues confidentially. Employers should establish a clear process for handling complaints, investigate them promptly, and take appropriate action to address any issues.
Ensuring that employees feel heard and supported is crucial for maintaining a positive work environment.
Conclusion
Discrimination against employees with disabilities remains a critical issue in Kenya, but the legal framework provides robust protections to address these challenges. The Constitution, the Persons with Disabilities Act, and relevant case law underscore the commitment to ensuring that individuals with disabilities have equal opportunities in the workplace.
Employers play a crucial role in fostering an inclusive environment by implementing policies, providing reasonable accommodations, and promoting awareness.
For legal guidance on disability discrimination and ensuring compliance with Kenyan laws, we are here to assist. Our team of experienced advocates specializes in employment law and can provide support in navigating complex legal issues related to disability rights and workplace inclusion.
To learn more, see the full judgement in Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR) (22 October 2021) (Judgment)
