The Persons with Disabilities Act, 2025, and Its Impact on Employers | Part A

Kenya has taken a significant step forward in strengthening the rights and protections afforded to persons with disabilities with the enactment of the Persons with Disabilities Act, 2025, which repeals the previous Act No. 14 of 2003.

This new legislation introduces updated provisions, including a revised definition of "disability" itself, which carries substantial implications for employers across the country. Understanding these changes is crucial for ensuring compliance and fostering genuinely inclusive workplaces.

To appreciate the evolution, we first turn to the definition as it was understood and applied under the Persons with Disabilities Act No. 14 of 2003, as referenced in the Supreme Court judgment in Gichuru v Package Insurance Brokers Ltd.

Disability Under the Persons with Disabilities Act, 2003 (as applied in Gichuru v Package Insurance Brokers Ltd)

The Gichuru judgment, a key source illustrating the application of the previous law, cites the definition of "disability" from the 2003 Act as "a physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacts adversely on social, economic or environmental participation".

A significant aspect noted in the judgment regarding the 2003 Act's definition was its silence on the duration of the disability, whether temporary or permanent. The court held that as long as an impairment negatively affected an individual's participation in social, economic, or environmental spheres, it qualified as a disability under the Act. In the specific context of the Gichuru case, the appellant's physical condition, which limited his mobility, was considered a disability because it impacted his ability to move around the office and participate in his duties.

Disability Under the Persons with Disabilities Act, 2025

The new Act, No. 4 of 2025, provides a refreshed and seemingly broader definition of "disability" in Section 2. It defines "disability" as "includes 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 marks several key departures from the previous one.

Key Differences Between the Definitions

The comparison reveals significant shifts in how "disability" is legally defined and understood:

1. Explicit Inclusion of Psychological Impairment: The 2025 definition explicitly lists "psychological" impairment among the types of conditions that constitute a disability. While "mental" was present in the 2003 definition, the addition of "psychological" broadens the scope to clearly include a range of mental health conditions that might not have been consistently covered or perceived under the older "mental" category alone.
2. Shift in Impact Criteria: The way the impact of the impairment is measured has changed. The 2003 Act focused on an impact that "impacts adversely on social, economic or environmental participation". The 2025 Act shifts the focus to an impact 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". "Ordinary day to day activities" could be interpreted more broadly than just social, economic, or environmental participation, potentially encompassing a wider range of functional limitations.
3. Inclusion of "Perceived" Disability: A crucial addition in the 2025 definition is the inclusion of impairments, conditions, or illnesses that are "perceived to have a substantial or long-term effect". This means an individual can be protected under the Act not only because they actually have a qualifying impairment, but also if they are treated as if they have one, and that perception has a substantial or long-term effect on their ability to carry out ordinary day-to-day activities. This concept was not explicitly present in the quoted 2003 definition.
4. Introduction of a Temporal Element ("Long-Term"): While the 2003 Act was interpreted in the Gichuru judgment as being silent on the duration (temporary vs. permanent) and focusing purely on adverse impact at the time, the 2025 definition introduces the phrase "long-term effect". This suggests that fleeting or transient conditions, unless they are perceived to be long-term or have a substantial current effect, may not qualify under the new definition.

Impact of the Change on Employers: A Compliance Perspective

The redefined scope of "disability" under the Persons with Disabilities Act, 2025, combined with its detailed provisions regarding employment, places significant obligations on employers. These changes necessitate a review and potential update of workplace policies and practices to ensure full compliance.

1. Broader Protection and Duty of Non-Discrimination: The most immediate impact is the broadened scope of individuals protected against discrimination. Employers are explicitly prohibited from discriminating directly or indirectly against a person on account of disability in job application procedures, hiring, advancement, and other terms and conditions of employment. The inclusion of psychological impairments means mental health conditions are now unequivocally covered, requiring employers to extend non-discriminatory practices to individuals with such conditions. The concept of perceived disability means employers must also be mindful of how they treat individuals they believe to have a disability, even if no formal diagnosis exists. The Act lists specific acts or omissions that constitute discrimination, such as limiting job opportunities, using screening criteria that disadvantage persons with disabilities, providing less pay for the same work, or not making reasonable accommodation. The Gichuru judgment highlights that the burden of proof in discrimination claims can shift to the employer to show that discrimination did not take place and that any differential treatment was justified. The expanded definition means employers must be prepared to justify actions against a wider range of conditions or perceived conditions.
2. Increased Obligation to Provide Reasonable Accommodation: The 2025 Act mandates employers to carry out "appropriate modifications" in their work premises to accommodate the employment of persons with disabilities. "Reasonable accommodation" is defined to include making facilities accessible, job restructuring, modified work schedules, reassigning to vacant positions, acquiring or modifying equipment, adjusting training materials, and providing qualified readers or interpreters. Failing to make reasonable accommodation is explicitly listed as an act of discrimination. The broader definition of disability means employers are likely to face requests for accommodation for a wider variety of conditions, including those related to psychological health or conditions requiring long-term management. The Gichuru judgment underscored the employer's obligation to consider the medical report and accommodate the employee, stating that they must prove that accommodating the appellant would cause undue hardship. Employers must now apply this principle to a broader spectrum of disabilities covered by the new Act. The Act requires employers to consider modifications unless they pose a "disproportionate or undue burden".
3. Impact on the Employment Quota: For employers with at least twenty (20) employees, the Act requires reserving at least five percent of direct employment opportunities for persons with disabilities. The expanded definition, particularly regarding psychological and perceived disabilities, means a larger pool of individuals potentially qualifies to meet this quota. Employers must accurately identify and count employees with this broader range of conditions to assess their compliance with the 5% target.
4. Fair Recruitment and Assessment Practices: The Act reinforces the prohibition against discriminating based on disability during recruitment. It also specifically states that employers shall not conduct any test or examination to establish whether an applicant is a person with a disability or determine the nature or severity of their disability. The broader definition reinforces the need for recruitment processes that focus on the inherent requirements of the job and do not unfairly screen out candidates based on a wider array of conditions or perceived conditions.
5. Enhanced Reporting Requirements: Employers are required to submit an annual report to the Council on the status of employment of persons with disabilities within their establishments. This reporting obligation will now encompass the broader definition of disability, requiring employers to update their internal tracking and reporting mechanisms to reflect the wider range of covered conditions and perceived conditions.
6. Clearer Definition of Discriminatory Acts: The 2025 Act provides a detailed list of acts or omissions that constitute discrimination in employment. This increased clarity, combined with the expanded definition of who is protected, gives employers more precise guidance on what practices are prohibited, but also potentially increases the areas where they could be challenged for non-compliance.
7. Documentation and Registration: While the Act provides for the registration of persons with disabilities by the Council and the issuance of disability identification cards as conclusive evidence of disability status, the inclusion of "perceived disability" means that an individual may still be protected by the non-discrimination and accommodation provisions even if they are not yet formally registered. For incentives like tax deductions for employing persons with disabilities, proof certified by the Council is required.
8. Potential for Increased Legal Challenges: The broader definition, particularly the inclusion of psychological and perceived disabilities, coupled with explicit requirements for reasonable accommodation and detailed definitions of discrimination, may lead to an increase in legal claims against employers if compliance efforts are not robust. The Gichuru judgment sets a precedent for significant damages awarded for discrimination.

Conclusion

The Persons with Disabilities Act, 2025, represents a significant evolution in Kenya's legal framework for protecting persons with disabilities. The expanded definition of disability, particularly the inclusion of psychological and perceived impairments and the focus on impact on daily activities, broadens the scope of individuals covered by the Act's protections. This places a greater onus on employers to ensure their policies, practices, and workplace environments are non-discriminatory and provide reasonable accommodation for a wider array of conditions. Proactive steps by employers to understand these changes, train staff, and adapt their workplaces are essential for legal compliance and for cultivating inclusive and equitable employment opportunities.

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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.