Revisiting the Macharia v Safaricom: The Realization of the Right to Employment of PWDs in Kenya

"Africa Disabilities IVLP Group" by Bureau of Educational & Cultural Affairs is licensed under CC BY-NC-ND 2.0.

The case of Macharia v Safaricom PLC (Petition 434 of 2019), raised various issues. The High Court assessed whether the right to employment of Persons with Disabilities (PWDs) enshrined in Article 27 of the (CRPD), and the rights to human dignity, fair administrative action and reasonable accommodation had been violated during the recruitment and employment of a PWD.

Background of the case

In August 2016, the respondents advertised a job opening for a customer experience executive position, stating their commitment to creating a diverse and equal opportunity environment for all qualified candidates, regardless of race, color, religion, gender, tribal origin, disability, or age. The advertisement also specifically mentioned their commitment to employing PWDs.

Upon shortlisting, the PWD candidates went through the same interview process as other candidates but were allowed reasonable accommodations during the aptitude test, including a lower pass mark and more time duration.

During the interview, the petitioner, Mr. Macharia, was unable to undertake the Saville Assessment (formerly known as SHL Group Limited) SHL Computerized aptitude test due to visual impairment. Rather, he went through the oral interview and medical test, with the understanding that he would be considered for the same position when the time came for the visually impaired Customer Experience Executive project. This was considered a reasonable accommodation in accordance with the law.

When the process was finally over, he was informed that he could not be employed as he had not completed all the tests. No further explanation was rendered. Mr. Macharia sought a declaration that the company discriminated against him based on his visual disability and violated his right to be treated with dignity. He relied on the  CRPD, which defines reasonable accommodation and discrimination based on disability.

The court found the company was in breach of fair administrative action and that it subjected Mr. Macharia to humiliation, thereby violating his right to human dignity. As a result, the court awarded Mr. Macharia Kshs. 6,000,000/= in compensation.

Against this background, this article appraises the judgment and examines the existing legal frameworks in order to make recommendations for the realization of the right to employment in Kenya.

An appraisal

The court’s judgment serves as good jurisprudence and it ushered in a new dawn for PWDs who are constantly discriminated against in workplaces both during employment search and even after acquiring employment.

The judgment reaffirms the rights of every individual including PWDs, to human dignity, protection against discrimination, and fair administrative procedures. Additionally, the case adds to a collection of disability rights-related rulings that underscore how the courts serve as a suitable platform to uphold the human rights of PWDs. Perhaps more crucially, the case opened the door for more strategic legal action and discussions concerning reasonable accommodations in the workplace.

Existing Legal Framework on the Right to Employment of PWDs in Kenya

Article 27(3) of the Constitution guarantees equal treatment, including the right to equal opportunities in political, economic, cultural, and social spheres. In addition, Article 27(4) and (5) prohibits discrimination by the state and/or any person, directly or indirectly, against any person on any ground. This includes discrimination in employment and labour relations.  

Moreover, the Persons with Disabilities Act of 2003 also prohibits the denial of employment opportunities to PWDs. More specifically, the Employment Act, No. 11 of 2007 prohibits discrimination on grounds of disability. Section 5(3) provides that no employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee on among other grounds, disability.

Under the Constitution of Kenya, international law forms part of the legal system. In that regard, Article 27 of the CRPD which guides states to ensure that PWDs have equal access to employment opportunities in an open, inclusive, and accessible labour market, was applicable in the case.

It is important to highlight that the Kenyan laws mentioned above do not sufficiently address the concept of "reasonable accommodation." For instance, the provisions do not specifically define the failure to provide reasonable accommodations as a form of discrimination, nor do they grant a broad right to reasonable accommodations in various situations. This right is crucial in ensuring that PWDs can access employment opportunities that would otherwise be difficult for them. Provided that the term reasonable accommodation remains obscure individuals are unable to pursue legal claims against employers and others who do not provide such reasonable accommodations. 

Issues faced by PWDs in employment

Despite the existing legal frameworks, discrimination against PWDs in accessing employment opportunities persists. Monitoring has revealed that there are barriers to their employability. Some of the identified barriers include low levels of education, negative attitudes toward persons with disabilities, poverty, lack of workplace support, weak implementation of tax exemptions, and most notably, stigma and economic prejudice.

Section 12 (3) of the Persons with Disabilities Act, 2003 grants an exemption from tax on all income derived from employment to employees with disabilities. Although it is encouraging to note that PWDs are benefiting from this tax exemption, those in rural areas appear to have limited awareness of it and have not applied for an exemption. Additionally, the application process is reportedly burdensome and biased, particularly for individuals with psychosocial disabilities.

Furthermore, most job advertisements are disseminated through print media such as newspapers and the internet, which may not be accessible to many persons with disabilities. Consequently, many qualified PWDs are unable to apply for certain jobs due to a lack of information.  

Reasonable accommodation is also often lacking in various workplaces, which makes it difficult for PWDs to communicate effectively with their colleagues and carry out their duties. Moreover, basic accommodations such as computer software for visually impaired individuals, braille machines, sign language interpretation, flexible working hours, and personal assistants are often unavailable. As a result, PWDs feel excluded and may ultimately decide to leave their jobs.

FROM NORM TO PRACTICE

Article 27 of the CRPD alluded to earlier, imposes a duty on States Parties to acknowledge the employment rights of individuals with disabilities, ensuring their equal treatment with others. This encompasses the right to pursue gainful employment through freely chosen or accepted work within a labor market and work environment that is inclusive, open, and accessible to persons with disabilities.  Based on Article 27, the following recommendations are provided in sections (a), (b), and (e):

a. Prohibiting discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuation of employment, career advancement, and safe and healthy working conditions;

b. Protecting the rights of PWDs, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances;

e. Promoting employment opportunities and career advancement for PWDs in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment.

Despite implementing some of these recommendations there is slow progress in public perception and treatment of PWDs in employment. As such, there remains much to be accomplished in ensuring that all Kenyans recognize and uphold the rights of individuals with disabilities. Lack of awareness among the public, employers, and those with disabilities themselves has hindered adequate support.

In addition, effective implementation of laws addressing employment opportunities for disabled individuals is vital not only for their economic rights but also for broader social and political empowerment, as these aspects are interconnected with economic inclusion. Initiatives to mainstream disability issues, whether they are vocational rehabilitation laws, quota legislation, or anti-discrimination legislation are crucial for continued improvement.

Summarily, the case analysed herein demonstrated the plight of PWDs. The implementation and enforcement of legal frameworks, provision of reasonable accommodations, promoting of inclusive workplaces, and simplifying the tax exemption process are all necessary steps towards achieving equal employment opportunities for PWDs.  Overall, it requires a collective effort from all stakeholders to build an inclusive society where individuals with disabilities have equitable access to opportunities and can actively participate in all aspects of life.