Background
The petitioners are two people living with disability who applied for jobs as Supervisors for the 2019 census within Kisii county . They were both offered the roles after a series of interviews and shortlisting by the Kenya National Bureau of Statistics. Their contracts stipulated that they would be paid Kshs 2,500 per day for 27 days.
However, before they could start working, they received letters from the Kisii County Commissioner informing them that the Census Committee had reached a decision to terminate their employment owing to the ‘extent of their disabilities’ which in the committee’s view, would hinder them from performing their duties.
Feeling aggrieved by the decision, they instituted the suit for discrimination based on disability, and unlawful termination.
The Case
The Petitioners argued that the reasons given for their dismissal were cruel and discriminatory which is contrary to the law. They also argued that the constitution mandates that at least 5% of all opportunities be reserved for persons with disability.
The Respondent’s on the other hand argued that the roles were labour intensive and required a lot of movement, which the Petitioners would be unable to perform because of their disabilities.
Holding of the Court
The court agreed with the Petitioners, adding that the Respondents were well aware of their disabilities during the interview stage and still proceeded to recruit them.
More importantly, the court highlighted the Reasonable Accommodation Doctrine stating that the Respondents should have demonstrated that they took reasonable steps to accommodate the special needs of the Petitioners in the jobs.
Impact of the Decision
The decision reinforced the Reasonable Accommodation Doctrine which demands that Employers ensure that they first take reasonable steps to retain disabled employees before terminating them.
The Doctrine applies both during hiring and also where an employee becomes disabled in the course of employment. The courts will require an employer to demonstrate that they took steps to specially accommodate the employee including:
- Assignment of lighter duties with commensurate pay
- Provision of special equipment and facilities i.e ramps, reinforced railings
- Attempting to retrain and re-assign to different duties if the current role is untenable
Court’s have in very few instances upheld an employer’s decision to terminate an employee on account of disability. It is however important to note that the doctrine does not apply where the job requires a special or unique set of skills or ability that person’s with disability cannot perform, i.e where the role is of a loader and the person applying or employee has no limbs to load the cargo.