31 January 2022 by and Employment Law Alert

Discrimination and reasonable accommodation of an employee’s disability

The Supreme Court of Kenya (the Court) recently made a noteworthy decision relating to discrimination and reasonable accommodation of an employee’s disability, in the Gichuru v Package Insurance Brokers Limited (Petition 36 of 2019) [2021] KESC 12 (KLR) case. 

The Appellant (the Employee) was employed by the Respondent (the Company) in 2010 on a permanent and pensionable basis. In November 2013, the Employee was diagnosed with an illness that required him to seek medical attention. The Company allowed the Employee to do so and increased his salary during this period. The Employee returned to work after approximately three months, however, he was unable to move around the workplace unaided. The Company therefore requested the Employee to provide a medical report of his condition and go on sick leave until such a time as he would be able to move around unassisted.

Approximately one month later, the Company issued a notice of suspension to the Employee, because he did not provide the medical report. In response, the Employee provided the medical report, which recommended that he would be fit to resume duty within two months. Notwithstanding the report, the Company suspended the Employee and requested him to pay all of his outstanding liabilities to the Company. On this basis, the Employee alleged that the Company was constructively dismissing him, disguising this as a suspension. The Company denied the allegations but proceeded to summarily dismiss the Employee for gross incompetence, because of a separate investigation carried out by the Company.

The Employee asserted that he was subjected to undignified and discriminatory treatment, on the basis of his disability. The Employee further submitted that the Company failed to take steps to reasonably accommodate his disability in the workplace, which in turn disadvantaged him, as he was subject to the same working conditions as his colleagues. 

The Employee therefore petitioned the Employment and Labour Relations Court, who found that the termination was unlawful. On appeal, the Court of Appeal set aside the trial Court’s award, basing its decision on the Employment Act, 2007, without specifically relying on provisions of the Constitution. The Employee appealed further, however the Employer sought to strike out this appeal, arguing that there was no constitutional question involved in the Court of Appeal’s decision, to warrant an appeal to the Court. In its ruling, the Court dismissed the Employer’s application, giving way to the current case heard by the Court, which we analyse below, as it was held that discrimination is a constitutional matter under Article 27(5) and the Employee would not be prohibited in his appeal, merely because the Court of Appeal did not base their decision on a provision of the Constitution.

Issues

Among various issues, the Court considered whether the Company’s treatment of the Employee was discriminatory on account of the Employee’s physical incapacity, contrary to Article 27(5) of the Constitution.

Reasoning and Holding

The Court held that the Company indirectly discriminated against the Employee. It was stated that ‘protecting employees against discrimination in the workplace is a significant matter, and the burden placed upon an employer to disprove the allegations of discrimination is enormous.’ In the Court’s opinion, the Company’s behaviour indicated that they wanted to terminate the Employee. The Court considered the Company’s failure to follow due procedure, in relying on the ground of gross incompetence and stated that the Company was ‘conducting extraneous investigations to find fault’ against the Employee, as an afterthought.

The Court relied on section 15 of the Persons with Disabilities Act 14 of 2003 and held that unless it was proven that accommodating the Employee would cause undue hardship to the Company, the Company “had an obligation to consider the medical report and to further accommodate the Employee by devising ways that could ease his movements.” The Court reiterated that:

“…the law does not require employers to hire or continue to employ persons who are or have become disabled; it does however, oblige them to examine whether an appropriate and not unduly burdensome change in the work environment would allow such persons to do, or to continue doing their job.”

The Court therefore held that the Company’s failure to reasonably accommodate the Employee’s disability or demonstrate that they would suffer undue hardship by providing amenities, such as a ramp for ease of access, or flexible hours for the Employee; in addition to the Company’s decision to suspend and terminate him (in disregard of the medical report), the failure to carry out an investigation on the extent of his injury and incapacity, the expectation that he would continue working in the same conditions as the rest of his colleagues, as well as the Company’s decision to find ways to terminate the Employee gratuitously, instead of considering possible alternatives, was “outrightly unreasonable” and amounted to indirect discrimination.

Conclusion

Employers should take note of the standards, burden of proof and obligations placed on them by the Constitution, disability laws and the Court’s interpretation of these provisions. In essence, an employer is required to take steps to reasonably accommodate an employee with a disability, unless the employer can prove that such accommodation would cause undue hardship. Notably, the Court did not qualify what amounts to undue hardship; however, it is likely that this is determined on a case-by-case basis. Employers are therefore advised to analyse the circumstances of each situation, in determining what amounts to undue hardship for their organisation. Employers are further advised to investigate an employee’s injury and capacity levels, as well as the possible alternatives in creating a fair and accommodating work environment.

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