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ELRCPartially AllowedCause No 104 of 2017· [2019] KEELRC 1905 (KLR)

JMM v Smollan Kenya Limited (Cause 104 of 2017) [2019] KEELRC 1905 (KLR)

Employment and Labour Relations Court
29 March 2019
5,622 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employer must adapt workplace technology for a visually impaired employee, and that refusing such reasonable accommodation is unlawful disability discrimination.

What this practically means

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Executive summary

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The claimant, a Merchandiser on a 12-month fixed term contract commencing August 1, 2015, suffered from low vision caused by retinitis pigmentosa. When the respondent introduced the Hand Held Terminal (HHT) with touch-screen technology in October 2015, she requested a screen reader (SR), later voice command (VC) software, and offered to use headphones to meet confidentiality concerns. The respondent declined, citing data confidentiality and a policy permitting only S-Smart installation, and moved her orally to a reliever position and then Assistant Merchandiser at reduced pay, contrary to section 10(5) of the Employment Act. The court, assisted by expert evidence from Lawrence M Mute on reasonable accommodation, found the respondent failed to demonstrate any hardship in implementing the requested accommodation and that operational policies cannot justify refusal of accommodation without consideration of modification and established justification. The failure to accommodate amounted to disability discrimination under section 5 of the Employment Act and violated articles 10, 27, 28, 41 and 54 of the Constitution, sections 12 and 15 of the Persons with Disabilities Act and articles 5 and 27 of the CRPD. However, the claim of unfair termination failed: the fixed term contract lapsed on July 31, 2016 by effluxion of time, before the claimant purported to resume duty, and there was no legitimate expectation of renewal. The court awarded Kshs 1,500,000.00 as compensation for the constitutional violations - less than the Kshs 3,000,000.00 sought, because the denial of accommodation was not the proximate cause of separation - payable by July 1, 2019 with interest thereafter, plus costs of the suit.

Key legal issues

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01

Whether the claimant was unfairly terminated

Holding

No unfair termination; the 12-month fixed term contract lapsed on 31.07.2016 by effluxion of time and there was no legitimate expectation of renewal.

Reasoning

The contract was a one-year fixed term expiring on or about 31.07.2016 with no agreement on renewal. The claimant resumed duty in August 2016, after the contract had lapsed, having been fully paid throughout. The court held there was no subsisting contract to terminate and declined to consider procedural or substantive fairness of a termination.

p. 2
02

Whether the failure to install SR/VC software and the movement to reliever and Assistant Merchandiser amounted to disability discrimination

Holding

Yes; the respondent failed to accord reasonable accommodation, which amounted to discrimination and violation of articles 10, 27, 28, 41 and 54 of the Constitution and sections 5(3) and 10(5) of the Employment Act and sections 12 and 15 of the Persons with Disabilities Act.

Reasoning

The claimant disclosed her visual disability and requested SR software, headphones and later VC software. The respondent cited confidentiality and HHT policy but never demonstrated financial or undue hardship; the field manager could download the software on his own laptop. The movement to reliever and Assistant Merchandiser reduced pay and reporting channels and was effected orally contrary to section 10(5), and was therefore adverse and discriminatory.

p. 10
03

Whether maternity/sick leave entitlements were breached

Holding

No breach; the respondent lawfully advised sick leave, and maternity leave cannot extend beyond the contract's tenure absent agreement.

Reasoning

The court applied section 30(1) on sick pay and section 29 on three months' maternity leave of the Employment Act, holding the respondent acted within the law in advising the claimant to apply for medical or sick leave, and that maternity leave cannot outlive the fixed term contract absent agreement between the parties.

p. 8
04

Quantum of compensation for the discrimination

Holding

Kshs 1,500,000.00 awarded, less than the Kshs 3,000,000.00 sought, because the denial of accommodation was not the proximate cause of separation.

Reasoning

Distinguishing Antony Kipkorir Sang v Attorney General, where Kshs 3,000,000.00 was awarded for loss of employment through retirement on medical grounds, the court held that here the unfair denial of reasonable accommodation was only an indirect or inert cause of the non-renewal, though discrimination during employment was clear.

p. 3

Legal principles established

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  • Reasonable accommodation may require modification of the employer's operational requirements, systems or policies, and an employer cannot rely on those policies to deny accommodation without considering modification and establishing hardship.
  • Failure to provide reasonable accommodation may amount to discrimination on account of disability; the burden lies on the employer to prove that discrimination did not take place.
  • In the absence of agreement, maternity leave cannot subsist beyond the tenure of the contract of service.

Court orders

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  1. 1.Declaration that the respondent's failure to install or provide a screen reader, voice command or other technology and the subsequent demotion amounted to discrimination on the basis of disability, offending articles 10, 27, 28, 41 and 54 of the Constitution
  2. 2.Declaration that the claimant's rights to fair labour practices and reasonable working conditions under article 41 were violated
  3. 3.Declaration that the claimant's right to dignity under articles 28 and 54(1) of the Constitution was violated
  4. 4.Declaration that the respondent violated sections 12 and 15 of the Persons with Disabilities Act, articles 5 and 27 of the CRPD, and sections 5(3) and 10(5) of the Employment Act, 2007
  5. 5.Declaration that the decision of October 21, 2015 moving the claimant to a reliever and to Assistant Merchandiser on November 23, 2015 amounted to a discriminatory, unprocedural, improper, unlawful, wrongful and oppressive demotion
  6. 6.The respondent to pay the claimant Kshs 1,500,000.00 as compensation for constitutional rights violation under articles 10, 27, 28, 41 and 54, payable by July 1, 2019 failing interest from the date of judgment until full payment
  7. 7.The respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010articles 10, 27, 28, 41, 47, 54(1)
  • Employment Act, 2007sections 5(2), 5(3), 5(6), 10(5), 29, 30(1), 35, 36 (35 and 36 as prayed)
  • Persons with Disabilities Actsections 12 and 15 (15(6) referenced in submissions)
  • Convention on the Rights of Persons with Disabilitiesarticles 2, 5 and 27

Cases cited (3)

  • Antony Kipkorir Sang v Attorney General
    [2014]eKLR
  • Foley v Interactive Data Corp
    (1998) Cal. Rptr. 211
  • Patrick Njuguna Kariuki v Del Monte (K) Ltd
    [2012]eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, 2007; articles 10, 27, 28, 41, 47 and 54 of the Constitution invoked in the claim)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "JMM v Smollan Kenya Limited (Cause 104 of 2017) [2019] KEELRC 1905 (KLR)", Case Analysis (2019). Cause No 104 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1905/eng@2019-03-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.