Automated Summary
Key Facts
The petitioner, a visually impaired individual, was invited to apply for a Customer Experience Executive position at Safaricom PLC in 2016. Despite being allowed to complete the oral interview and medical test, he was unable to take the SHL Computerized Aptitude Test due to the respondent's lack of software accommodating visually impaired candidates. Safaricom later issued a job offer in September 2017, which was subsequently retracted, citing it as an 'erroneous' decision. The court found that while Safaricom's actions violated the petitioner's rights to dignity (Article 28/54(1)) and fair administrative action (Article 47), the failure to accommodate his disability with necessary software was not deemed discriminatory under section 15(2) of the Persons with Disabilities Act due to budgetary and technical constraints. The petitioner was awarded Kshs 6,000,000 in compensation.
Issues
- Whether an employment candidate who was invited for an interview by an employer, who could not fully evaluate him due to lack of software and later withdrew a letter of offer of employment on grounds that it had been issued erroneously, had been discriminated and had his rights to dignity and fair administrative action violated.
- Whether it was possible for a visually impaired person to be employed where an employer failed to acquire the software that would enable that person to work.
Holdings
- The petitioner was awarded compensation under article 23(3)(d) of the Constitution for the violation of his rights to dignity (articles 28 and 54(1)) and fair administrative action (article 47). The court deemed Kshs 6,000,000 a reasonable compensation given the circumstances of the case.
- The court declared that the act of denying the petitioner an employment opportunity on the basis of his disability was not shown to amount to an act of discrimination against him, nor was it discriminatory by virtue of section 15(2) of the Persons with Disabilities Act. The respondent's failure to provide reasonable accommodation was due to lack of software but not on account of the petitioner's visual disability, and thus did not infringe his rights to equality.
- The court declared that the petitioner's right to be treated with dignity under articles 28, 41, and 54(1) of the Constitution and his right to fair administrative action under article 47 were violated by the respondent. The respondent's conduct during the recruitment process, including the late withdrawal of the employment offer, subjected the petitioner to humiliation and failed to respect his dignity.
- The court ordered that the costs of the suit be paid to the petitioner, with interest from the date of judgment. This includes legal expenses incurred during the litigation process.
Remedies
- Costs to the petitioner with interest from the date of judgment.
- The petitioner was 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/=-.
- Declaration 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 Persons with Disabilities Act.
- Declaration 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.
Monetary Damages
6000000.00
Legal Principles
The court applied principles of judicial review to assess whether Safaricom PLC's failure to integrate software for a visually impaired candidate constituted discrimination under the Persons with Disabilities Act (section 15(2)) and violated constitutional rights to dignity (articles 28, 54(1)) and fair administrative action (article 47). The judgment emphasized that an employer is not deemed discriminatory if accommodations would impose undue hardship (budgetary constraints), but breached procedural fairness by misleading the candidate through incomplete recruitment processes.
Precedent Name
Cuiellette v City of Los Angeles
Cited Statute
- Constitution of Kenya 2010
- Persons with Disabilities Act
- Employment Act
- Convention on the Rights of Persons with Disabilities
Judge Name
Ja Maka
Passage Text
- The respondent had allowed the petitioner to undertake all internal steps knowing he was visually challenged. The respondent's excuse was afterthought that was introduced late to the detriment of the petitioner... The failure to provide the alleged software at the time of recruitment interview violated the petitioners right to fair administrative action as provided under article 47 of the Constitution.
- I find that the respondent did not tender any evidence to guide this court as regards the cost of accommodating the petitioner... Accommodating the petitioner and others with visual impairment has not been shown to have negligible impact on the budgetary allocation to the respondent herein.
- The duty and/or requirement to act fairly squarely falls upon the respondent... the petitioner had the right to be given written reasons for the actions. This the respondent did not do so... and failed to respect the petitioner's right to human dignity.