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ELRCPartially AllowedNot stated in judgment· [2022] KEELRC 563 (KLR)

LC v Sotik Tea Company Limited (Petition E002 of 2020) [2022] KEELRC 563 (KLR)

Employment and Labour Relations Court
10 March 2022
OMOnesmus N Makau
4,171 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan employer wrongly fired a visually impaired worker: disability alone is never a valid reason to dismiss without first providing reasonable workplace accommodation.

What this practically means

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Executive summary

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The petitioner, a secretary employed by the respondent since April 2006 at a starting salary of Kshs 13,000, lost her eyesight in 2016 after eye complications. She trained in Braille at the Kenya Institute of Special Education and registered with the NCPWD. By letters dated March 9, 2017 and May 19, 2017 the respondent terminated her employment on medical grounds of incapacity due to visual impairment. She petitioned the Employment and Labour Relations Court at Nakuru, alleging discrimination contrary to article 27, and violation of her rights to fair labour practices and fair administrative action under articles 41 and 47, and breaches of sections 5, 45 and 46 of the Employment Act and section 15 of the Persons with Disabilities Act, seeking declarations, reinstatement and compensation. The respondent admitted the medical-ground termination but justified it on incapacity and workplace safety, arguing it had supported her with treatment, training, reassigned duties and extended paid sick leave. The court framed four issues: validity of reason, fairness of procedure, rights violation, and reliefs. It held that disability alone does not establish incapacity and that the employer bore the burden of proving reasonable accommodation was provided or impossible. Finding no special facilities were ever provided, the court held the reason was invalid, the termination unfair and discriminatory. Procedure was, however, found fair. Reinstatement was refused as more than three years had lapsed under section 12 of the ELRC Act. Judgment was entered for the petitioner for Kshs 2,156,000 (notice, compensation and general damages of Kshs 2,000,000 for discrimination), with costs and interest.

Key legal issues

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01

Validity of the reason for termination on medical grounds

Holding

Reason was not valid and fair as the employer failed to provide reasonable accommodation and failed to prove incapacity despite accommodation

Reasoning

Section 45 requires a valid and fair reason related to conduct, capacity or compatibility. Section 46(g) provides disability is not a fair reason for dismissal. Once the employer relied on visual disability, the burden shifted to it to prove it provided reasonable accommodation or that accommodation was beyond reasonable expectation. The employer admitted it never provided special facilities and its transfer of the petitioner to the stores without accommodation led to injury.

p. 10
02

Procedural fairness of the termination

Holding

A fair procedure under sections 41 and 45 was followed

Reasoning

The employer held meetings with the petitioner and her representative, issued a notice of intended termination and considered her representations before the decision. The court found the process satisfied section 41(1) of the Employment Act regarding explanation and opportunity to be heard before termination on grounds of physical incapacity.

p. 10
03

Discrimination and violation of constitutional rights

Holding

Termination on account of disability without reasonable accommodation was discriminatory and violated articles 27, 41 and 47

Reasoning

The termination was based solely on visual impairment without any special facilities or modification of the workplace. Payment of medical costs and salary during sick leave does not absolve liability for indirect discrimination, as held by the Supreme Court in Simon Gitau Gichuru. The conduct infringed section 5 of the Employment Act and section 15 of the PWD Act.

p. 11

Legal principles established

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  • Disability per se does not translate to incapacity; an employer dismissing on grounds of disability must prove lack of capacity or that reasonable accommodation was provided or was not reasonably practicable
  • The employer's duty to accommodate persons with disability springs from the overriding obligation not to discriminate, and paying treatment costs and salary does not absolve an employer who fails to provide reasonable accommodation

Court orders

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  1. 1.Declaration that the termination was unfair, discriminatory and contravened article 27, 41 and 47 of the Constitution, section 5 of the Employment Act and section 15 of the PWD Act
  2. 2.Notice pay of Kshs 26,000
  3. 3.Compensation of Kshs 130,000
  4. 4.General damages for discrimination of Kshs 2,000,000
  5. 5.Costs to the petitioner plus interest at court rates from the date of judgment, award subject to statutory deductions
Jurisdiction invoked
Article 41 and 47 of the Constitution; Employment and Labour Relations Court Act, section 12

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "LC v Sotik Tea Company Limited (Petition E002 of 2020) [2022] KEELRC 563 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/563/eng@2022-03-10

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