IMPACT OF THE PERSONS WITH DISABILITIES ACT, 2025 ON THE EMPLOYMENT RELATIONSHIP

Introduction

The Persons with Disabilities Act (“the Act”), enacted in May 2025 gives effect to Article 54 of the Constitution. The Act marks a significant milestone in Kenya’s efforts to promote equality, inclusivity and protection of the rights of Persons with Disabilities (PWDs). It has implications for employers in terms of legal obligations and opportunities to foster more inclusive workplaces. This Article analyses the key provisions of the Act with respect to its effect on employers.

Guiding principles

According to Section 3 of the Act, one of the guiding principles in promoting and protecting the rights of Persons with Disabilities is respect for difference and acceptance of Persons with Disabilities as part of human diversity and humanity.

Definitions

According to Section 2 of the Act, “disability” includes any physical, sensory, mental, psychological or other impairment, condition or illness that has or is perceived to have a substantial or long-term effect on an individual’s ability to carry out ordinary day to day activities.

“Persons with disabilities” are defined to include persons with long term physical, mental, intellectual, developmental or sensory impairments, including visual, hearing or albinism, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others;

Obligations for the employers

Section 21 of the Act outlines the obligations of employers to include;

1. Reserving at least 5% of direct opportunities for Persons with Disabilities, where an employer has a workforce of at least 21 employees;
2. Formulating policies that enhance employment opportunities for Persons with Disabilities;
3. Refraining from discriminating against Persons with Disabilities.
4. Not conduct any test or examination to establish whether an applicant is a person with a disability or as to the nature or severity of the person’s disability;
5. Modifying the work environment to accommodate employees with disabilities.
6. Providing reasonable accommodations, which includes: making facilities accessible, job restructuring, modified work schedules, adjustment to training and policies, provision of assistive tools and payment of assistive allowance.
7. Applying specific measures to employees with disabilities in promotions, training and other related matters arising in the course of, or through the length of employment. “Specific measures” means legislative, policies and practices, including outreach or support programmes, allocation or reallocation of resources; preferential treatment; targeted recruitment, hiring and promotion; numerical goals connected with time frames; and quota systems designed, adopted and implemented in order to fulfil equal enjoyment of rights of persons with disabilities.

Employers are also obligated to submit annual reports to the National Council for Persons with Disabilities on the status of employment of Persons with Disabilities. This is to be done in the format prescribed by the Council.

Prohibition of Discrimination

According to Section 2 of the Act, “discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.

The Act expressly prohibits discrimination against Persons with Disabilities. It places a mandatory obligation on employers to treat Persons with Disabilities equally in all aspects of employment, including hiring, training and promotion. Discriminatory actions identified in the Act include;

1. Classifying or limiting opportunities for applicants with disabilities;
2. Using a biased selection criteria that disadvantage Persons with Disabilities
3. Paying lower wages or denying benefits to employees with disabilities
4. Favouring an employee without disability over an employee with disability in promotion, training, study grants, etc
5. Transferring employees with disabilities to unsuitable roles;
6. Using employment tests which reflect disability rather than actual skill;
7. Denying union membership to Persons with Disabilities.

Section 62 of the Act provides that willful and unjustified discrimination against Persons with Disabilities is a criminal offence. A person convicted of such an offence may be liable to a fine not exceeding Kshs. 2,000,000/= or imprisonment for a term not exceeding two years or both.

Dismissal or demotion on grounds of disability

Section 22 of the Act provides that no person with a disability shall be dismissed or suffer any reduction in rank on the grounds of disability, acquiring any disability, or any consequences thereof.

Where an employee with a disability is placed under undue stress or disadvantage arising from their disability, the employer is required to offer them an equivalent position with adequate support measures.

Such an employee may, if required by the nature of the disability, be deployed to another post with the same pay scale and service. Where no suitable post is available, the employee may be kept on a supernumerary (temporary) post until a suitable post is available or they reach retirement age, whichever is earlier.

These provisions will impact terminations on account of physical incapacity. Presently our Courts emphasize that an employer must provide reasonable accommodation before terminating an employee on grounds of disability. For instance, in LC v Sotik Tea Company Limited [2022] KEELRC 563 (KLR), the Court held that before dismissal, the employer is obligated to offer reasonable special facilities or make reasonable necessary modifications to existing facilities to reasonably accommodate the employee with disability, unless it is shown that such accommodation would be unreasonable in the circumstances.

According to Section 2 of the Act “reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.

Retirement Age of Persons with Disabilities

The Act provides that employees with disabilities are entitled to retire 5 years later than the standard retirement age.

Incentives to employers who hire Persons with Disabilities

To encourage inclusive hiring, the Act provides several tax incentives for private employers who hire Persons with Disabilities, either as regular employees, apprentices or trainees.

A private employer who engages a person with a disability either as a regular employee, apprentice or learner shall be entitled to apply for a deduction from its taxable income equivalent to twenty-five percent of the total amount paid as salary and wages to such employee, provided that such an employer shall present proof certified by the Council of the person in respect of whom it claims the deduction and the person with disabilities so employed is accredited with the Council as to disabilities, skills and qualifications.

A private employer who improves or modifies its physical facilities or avails special services in order to provide reasonable accommodation for employees with disabilities shall be entitled to apply for additional deductions from its net taxable income equivalent to fifty per cent of the direct costs of the improvements, modifications or special services.

The Act also allows employers who employ Persons with Disabilities to deduct, from their taxable income, any reasonable expenses incurred for;

1. Providing reasonable accommodation;
2. Modifying the workplace to meet the specific needs of employees with disabilities; and
3. Providing assistive tools and specialized equipment.

Access to information and communication technology services

According to Section 26 of the Act, public and private institutions are required to provide information intended for the general public, including through the internet, to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities.

Public and private institutions are also required to accept and facilitate the use of Kenya sign language, Braille, augmentative and alternative communication, and all other accessible means and usable formats of communication to accommodate the needs of persons with disabilities.

Accessibility

According to Section 30 of the Act, public and private institutions are required to implement minimum standards and guidelines for the accessibility of facilities and services open or provided to the public to accommodate all aspects of accessibility for persons with disabilities.

Exemptions

Section 56 provides for exemptions as follows: –

All persons with disabilities who are in receipt of an income may apply to the Cabinet Secretary responsible for finance for exemption from income tax and any other levies on such income. The Cabinet Secretary responsible for finance shall, in consultation with the Council, assess all applications and may exempt the applicant wholly or partially in accordance with the Income Tax Act (Cap 470).

If an assessment demonstrates that an individual has a permanent disability, that person will be exempt from future assessments.

Conclusion

The Persons with Disabilities Act 2025, fosters an inclusive and equitable working environment for Persons with Disabilities. It compels employers to take a more proactive role in ensuring diversity and protecting the rights of Persons with Disabilities. Through both obligations and incentives, the Act promotes diversity, equal opportunity, and meaningful participation of Persons with Disabilities in employment.

Researched and compiled by Anne Babu and Mildred Letting.

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