In a classic case of discrimination in the employment process, Justice Makau in Wilson Macharia v Safaricom Plc [2021] eKLR held in favour of the petitioner, who averred that the Respondent denied him an employment opportunity based on him being visually impaired. The Court held that the Respondent failed to provide reasonable accommodation throughout the recruitment and selection process. The Petitioner in the matter was significantly awarded compensation for violation of his rights in the sum of Kshs.6,000,000/=.
Background
In the petition, the Petitioner averred that the Respondent had advertised for a customer experience executive position through its career portal and newspaper. He further averred that he was among the shortlisted candidates invited for a two-stage interview process. It was further indicated that even though persons with disabilities candidates were expected to go through the same process as all the other candidates, reasonable accommodations, with appropriate modifications and adjustments on the tests were to be provided by the Respondent throughout the process.
It was the Petitioner’s position that although he successfully undertook the first test, he was unable to undertake one of the further tests because he was visually impaired. He further communicated the same to the Respondent, who informed him to proceed with other tests as the process continues. After the recruitment process, the Petitioner was further invited for training and informed to participate in other employment formalities on a contingency basis. On the said contingency basis, which was the foundation of the Respondent’s case in the instant suit, the Respondent averred that the offer given to the Claimant amounted to an inadvertent error based on several reasons, most of which related to the fact that the Petitioner had still never undertaken and passed the technical interview, which he had been unable to do.
Court Analysis and Determination
- Whether the Respondent would still be able to employ the petitioner?
While looking into this issue, the court noted that it was the Respondent’s duty and obligation to procure the necessary software that would enable visually impaired persons to work at the stations as advertised. The court noted that by virtue of its advertisement, the Respondent already accorded itself with that duty. Under this issue, the Respondent claimed that it had been impossible to integrate the Petitioner at the workplace due to conflicting software configurations. The court did not find the Respondent’s explanations sufficient, it held that the Respondent failed to demonstrate that it had been impossible for it to employ the Petitioner since one does not need to have sight to use, operate and work with a computer in the modern age.
- Whether all factors considered, the Respondent’s conduct throughout the recruitment process amounted to discrimination against the Petitioner?
The court analysed the provisions of Article 2 of the Convention on rights of persons with disability and looked at the definition of ‘reasonable accommodation’ to mean necessary and appropriate adjustments and modification not imposing disproportionate or undue burdens to ensure persons with disabilities also enjoy or exercise their rights and fundamental freedoms on an equal basis. The Judge also looked into the relevant provisions of the Persons with Disabilities Act and the Constitution of Kenya, 2010.
He noted that the Respondent had allowed the Petitioner to undertake all internal steps knowing very well that he was visually impaired. He noted that it was only until reporting that the Petitioner was rejected. The court found that the rejection subjected the Petitioner to ridicule and humiliation amongst other candidates, thereby also lowering his dignity, amounting to an infringement and/or violation of his right to dignity.
On the recruitment process, the court importantly indicated that the Respondent had the whole duty and/or responsibility to act fairly and treat all the candidates equally and reasonably. It further noted that the Respondent invited the Petitioner for the interview knowing that it lacked special facilities or modifications necessary to accommodate the Petitioner. It therefore concluded in favour of the Petitioner, fundamentally stating that the Respondent discriminated the Petitioner through its actions throughout the recruitment process and subsequent selection or rejection.
In the upshot, the court found in favour of the Petitioner as follows:
- A declaration be and is HEREBY issued that the act of denying the Petitioner an employment opportunity on the basis of this disability was not shown to amount to an act of discrimination against the Petitioner nor was it discriminatory by virtue of Section 15(2) of the Person with Disabilities Act.
- A declaration be and is HEREBY issued that the Petitioner’s right to be treated with dignity as provided for under Article 28, 41 and 54(1) and Fair administrative Action under Article 47 were violated by the Respondent.
- The Petitioner is awarded compensation under Article 23(3)(d) of the Constitution for violation of rights to be treated with dignity under Article 28 and 54(1) and for violation of rights to fair Administrative Action under Article 47 the sum of Kshs.6,000,000/=.
- Costs to the Petitioner with interest from the date of judgment
Conclusion
Although discrimination appears to be something so obvious, the facts presented in this case present a classic scenario of discrimination in the recruitment process in the modern society. This is one area that can easily be ignored. The Judgment reminds all employers of the significant repercussions for failing to make all the reasonable and necessary accommodations for persons with disabilities, not only during employment, but also during the recruitment process.
Contributor-Aldrine Amwayi-Associate
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