Court orders Safaricom to pay man Sh 6 million for discrimination due to disability

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Telco giant Safaricom PLC has been ordered to pay Sh 6 million to a man with disability for violating his right to be treated with dignity.

Justice James Makau ruled that Wilson Macharia’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 said company when they denied him eploymeny on the basis of his condition.

“Wilson Macharia 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 Sh 6,000,000,” Judge Makau ordered.

Macharia filed a petition seeking declaration that Safaricom’s decision to deny him  an employment opportunity on the basis of his disability amounted to anact of discrimination against him and that it offends Articles 10, 27(4), 28, 41 and 47 of the constitution of Kenya 2010 and Section 5(2), 3(a & b) and 8(c) of the Employment Act.

Macharia told the court that in or about August 2016, Safaricom advertised for a Customer Experience Executive position through its career portal and a newspaper advert which clearly indicated that the company was committed to creating a “diverse environment and is proud to be an equal opportunity employer”. 

“All qualified Kenyan applicants will receive consideration for employment without regard to race, colour, religion, gender, tribal origin, disability or age,” read the advert.

Macharia, together with other candidates were shortlisted and were invited for a two-stage interview process on 7th July 2017. 

According to the applicant, on the date of interview, all interviewees in attendance were taken through an orientation programme before the actual interview. Macharia and other applicants were informed that the interview would be two-fold; consisting of both oral and technical evaluations.

However, Safaricom’s employee and labour relations senior manager Odhiambo Ooko was informed that one candidate, that being the petitioner herein, was not able to undertake the SHL Computerized Aptitude test as he was visually impaired.

Ooko then told Macharia that they were not able to conduct the SHL interview but asked him to proceed to the oral interview phase as the company considered a workaround for a later date.

The alternative would have been to simply inform him he could not go ahead with the interview but they did not and the parties argued that this amounted to reasonable accommodation as provided for in the law.

The court heard that the reason given to Macharia that Safaricom would consider a workaround is that the company had at that point commenced a project which was then at the initial stage that would have employed ten visually impaired Customer Experience Executives. 

The company had engaged software providers who were working with the company’s internal technical team to review integrations with the existing systems to support the project. 

Ooko asked Macharia to go through the other parts of the interview save those that needed the special software such as the technical interview and it was on the basis of this understanding that Macharia went through the oral interview and medical test as noted above. 

He also said that this would provide an opportunity to have him interviewed in consideration for the same position when the time came.