Understanding your rights and an employer's obligations is crucial for a fair and equitable working environment, especially if you live with a disability. Recent legal developments and landmark court decisions in Kenya have significantly clarified and strengthened the protections afforded to persons with disabilities in the workplace. This article explores what these laws mean for you, mapped against the typical stages of your employment, drawing insights from the new Persons with Disabilities Act, 2025, and the significant Supreme Court judgment in Gichuru v Package Insurance Brokers Ltd KESC 12.
Defining Disability in the Eyes of the Law
First, it's essential to understand how 'disability' is defined. According to the sources, including the new Act, "disability" is broadly defined to include "any physical, sensory, mental, psychological or other impairment, condition or illness that has or is perceived to have a substantial or long-term effect on an individual's ability to carry out ordinary day to day activities". This definition encompasses a wide range of conditions, whether physical, mental, or psychological, provided they have a significant long-term impact on daily activities.
The Persons with Disabilities Act, 2025, is the primary legislation protecting the rights of persons with disabilities, complemented by constitutional provisions (like Article 27) and the Employment Act (Section 5), which prohibit discrimination.
Let's examine your rights across the employee lifecycle:
1. Applying for a Job: Ensuring a Fair Start
The law is clear from the outset: no employer shall discriminate against a person with disability in job application procedures or hiring. This means you should not be treated less favourably than other candidates simply because of your disability. Employers are specifically prohibited from discriminating on account of disability when recruiting and cannot conduct tests or examinations solely to determine the nature or severity of your disability. Any qualification standards or tests that tend to exclude persons with disabilities must be objectively justified.
Furthermore, employers with at least twenty employees have a positive obligation to reserve at least five per cent of direct employment opportunities for persons with disabilities. Such employers are required to report annually on the status of employment of persons with disabilities within their organisation. This is a significant measure aimed at accelerating equal participation.
2. During Employment: Equality and the Duty of Accommodation
Once you are employed, you have the fundamental right to equality and non-discrimination in all aspects of your work life. Discrimination occurs when you are treated differently from others in similar positions based on your disability, without reasonable justification. This can be direct (less favourable treatment explicitly due to disability) or indirect (a requirement or condition that disadvantages people with your disability without objective justification).
A cornerstone of non-discrimination in employment is the employer's duty to provide reasonable accommodation. This involves making necessary adjustments and modifications that do not impose a disproportionate burden on the employer. In practice, this could mean:
- Making facilities accessible: Ensuring the workplace is physically accessible, potentially including ramps or modifying existing buildings. The employer in the Gichuru case, for example, acknowledged the lack of suitable facilities for an employee with mobility issues but failed to demonstrate attempts to accommodate him.
- Job Modifications: Restructuring job duties, adjusting work schedules, or providing modified equipment or devices.
- Providing Support: Offering qualified readers, interpreters, or other support services and assistive devices as needed.
As highlighted in Gichuru, the Supreme Court found the employer's actions amounted to indirect discrimination precisely because they did not demonstrate efforts to accommodate the employee's mobility challenges. The burden can shift to the employer to prove they attempted accommodation unless it caused undue hardship. You are also protected against degrading treatment.
3. Career Growth and Training: Opportunities for All
Your disability should not be a barrier to professional development. Employers must apply specific measures to employees with disabilities in matters of promotion, training, and other related opportunities, ensuring you are not disadvantaged.
4. Termination of Employment: Protection Against Unfair Dismissal
A critical protection is that no person with disability shall be dismissed or suffer any reduction in rank on the grounds of disability, acquiring any disability, or any consequences thereof.
While dismissal for incapacity (such as ill-health) is a recognised ground under the Employment Act, the Gichuru case strongly reinforces that the employer has a significant duty to investigate the extent of the incapacity and all possible alternatives short of dismissal.
The employer must demonstrate that the employee is medically unfit to continue, potentially requiring expert medical opinion. Disregarding medical reports or failing to investigate constitutes unjust and discriminatory action.
Furthermore, regardless of the reason for termination (including alleged misconduct or poor performance, as seen in Gichuru), your employer is legally required to follow a fair procedure. Section 41 of the Employment Act mandates that before terminating employment on grounds of misconduct, poor performance, or physical incapacity, the employer must explain the reasons to you and give you an opportunity to be heard, ideally with a representative present.
Crucially, the Supreme Court in Gichuru reiterated that contractual clauses allowing summary dismissal without notice for gross misconduct cannot override this mandatory statutory requirement for a hearing under Section 41. Summary dismissal itself does not grant the employer a "blanket right" to dismiss without a hearing. Failure to follow this procedure renders a termination unfair and unlawful for want of due process.
5. Retirement: An Extended Horizon
The law specifically provides that the age of retirement for persons with disabilities shall be five (5) years above the mandatory age of retirement set by the Government .
Enforcing Your Rights
If your rights are violated, you have legal recourse. You can apply to the High Court for redress, seeking compensation or other appropriate remedies in civil proceedings.
The National Council for Persons with Disabilities has a key role in enforcing these rights, including advising on and enforcing accessibility and non-discrimination. The Council can issue adjustment orders requiring modifications to premises or services. Failure to comply with such an order is a serious offence. Discrimination contrary to Article 27 is also an offence with significant penalties.
The Gichuru case serves as a powerful reminder that courts will scrutinise employer actions, particularly concerning the treatment and termination of employees with disabilities. The Supreme Court awarded damages for discrimination, 12 months' salary in compensation for unfair termination, and pay in lieu of notice, demonstrating that there are tangible consequences for employers who fail to uphold these legal obligations. The purpose of such awards, as noted in the judgment, is to act as a deterrent against discriminatory acts.
Conclusion
Kenya's legal framework provides robust protections for persons with disabilities in the workplace, covering everything from the application process to retirement. The employer's duty of non-discrimination and reasonable accommodation is not merely a suggestion but a legal requirement, failure of which can lead to significant liability, as underscored by the Gichuru judgment. For employees with disabilities, knowing these rights is empowering.
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Disclaimer
The information provided in this review reflects the proposed legislation as it stands at the time of writing. These provisions are subject to change as the legislative process progresses. Readers are advised to consult official updates or seek professional legal advice to ensure they have the most current and accurate information.
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The materials on this website are intended to provide a general summary of the law and do not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact or situation.
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