JMM v Smollan Kenya Limited (Cause 104 of 2017) [2019] KEELRC 1905 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the claimant was unfairly terminated
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.
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.
Whether the failure to install SR/VC software and the movement to reliever and Assistant Merchandiser amounted to disability discrimination
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.
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.
Whether maternity/sick leave entitlements were breached
No breach; the respondent lawfully advised sick leave, and maternity leave cannot extend beyond the contract's tenure absent agreement.
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.
Quantum of compensation for the discrimination
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.
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.
Legal principles established
#- 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
#- 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.Declaration that the claimant's rights to fair labour practices and reasonable working conditions under article 41 were violated
- 3.Declaration that the claimant's right to dignity under articles 28 and 54(1) of the Constitution was violated
- 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.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.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.The respondent to pay the claimant's costs of the suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.