Persons with Disabilities Act, 2025.

Employer Obligations and Compliance Guidelines

The Persons with Disabilities Act, 2025 (“the Act”) came into effect in May 2025, replacing the Persons with Disabilities Act, 2003. This new legislation significantly enhances Kenya’s legal framework on equality and employment, operationalizes Article 54 of the Constitution of Kenya, 2010 and aligns Kenya’s laws with the UN Convention on the Rights of Persons with Disabilities (CRPD).

The Act imposes binding obligations on employers regarding recruitment, treatment, accommodation, and dismissal of persons with disabilities (PWDs) in the workplace. This article highlights key provisions affecting employer responsibilities and provides practical recommendations for compliance.

Key Employer Obligations Under the Act

Employment Quota

• Employers with 20 or more employees must ensure that at least 5% of their workforce consists of PWDs (Section 21(2)(a)).
• Employers must submit an annual report to the National Council for Persons with Disabilities (NCPWD) detailing PWD employment within their establishment (Section 21(3)).

Reasonable Accommodation

Employers are required to modify their workplaces to accommodate PWDs (Section 21(2)(e)). These accommodations include:

• Physical accessibility to workplace facilities.
• Provision of assistive devices, mobility aids, and technological tools (e.g., specialized software).
• Job restructuring, including part-time work or modified schedules.
• Payment of assistive allowances for PWD employees (Section 21(7)).

Prohibition of Disability-Based Discrimination

Employers must not discriminate against individuals based on disability in recruitment, training, promotion, remuneration, or terms of employment (Section 21).

Workplace Adjustments

Employers must ensure workplaces are accessible to PWDs, including physical spaces, digital platforms, and communication systems (Section 21(2)(e)).

Protection Against Unfair Dismissal

Employers cannot dismiss, demote, or reduce the rank of an employee due to disability or the acquisition of a disability (Section 22). If an employee becomes disabled, employers must:

1. Maintain their rank with appropriate support.
2. Reassign them to another suitable position at the same pay scale.
3. If reassignment is not possible, retain the employee in a supernumerary post until a suitable position is available or until retirement.

A supernumerary post is a temporary position created to accommodate a PWD unable to perform their original duties while ensuring their employment status and benefits remain intact.

Compliance, Monitoring, and Penalties

• Employers may be audited by the NCPWD to ensure compliance (Section 39(c)).
• Discriminating against PWDs is an offense punishable by a fine of up to KES 2,000,000 or imprisonment for up to two years, or both (Section 62).

Tax Incentives and Financial Benefits for Employers

Employers who hire PWDs or modify their workplaces for accessibility are entitled to various tax deductions:

• 25% tax deduction on salary payments made to PWD employees (Section 23(1)).
• 50% tax deduction on costs incurred in improving workplace facilities for PWDs (Section 23(2)).
• Deductions on expenses related to reasonable accommodation, mobility aids, assistive devices, and technological modifications (Section 60).

Legal and Operational Implications

Structural Adjustments

Employers must modify physical, technological, and operational systems to comply with accessibility requirements. This may include installing ramps, specialized software, and redesigning job roles to accommodate PWDs.

Financial Considerations

While tax incentives exist, employers may still incur costs for reasonable accommodation and retaining PWD employees until retirement, even if they cannot contribute directly to business operations.

Increased Legal Exposure

Failure to accommodate PWDs or unjustified dismissals could lead to legal challenges. The Act places the burden of proof on employers to justify non-compliance.

Mandatory Reporting and Documentation

Employers must track and document efforts toward hiring and accommodating PWDs for annual reporting. This may require updates to HR and payroll systems.

Reforming Human Resource Policies

Employment contracts, HR manuals, and recruitment processes must reflect non-discrimination and accommodation obligations under the Act.

Greater Accountability

The NCPWD has the authority to audit employers, investigate workplace practices, and impose penalties. Noncompliance may result in fines, legal disputes, and reputational harm.

Judicial Precedents on Employer Obligations

Gichuru vs Package Insurance Brokers Ltd (2021) KESC 12 (KLR) is a decision by the Supreme Court where it was held that dismissing employees due to disability without offering reasonable accommodation amounts to discrimination thereby placing the burden on employers to prove why accommodation was not feasible.

Though this decision was made under the repealed Act, it remains relevant under the 2025 Act. This is because the Act codifies and expands on the principles established by the Supreme Court by explicitly requiring reasonable accommodation, prohibiting discrimination and introducing enforcement measures such as fines and tax incentives for compliance. As such, Gichuru case continues to serve as a foundational precedent in promoting disability rights within employment law.

The Court of Appeal in Macharia vs Safaricom PLC (Petition 434 of 2019) (2021) KEHC 462 upheld the High Court’s ruling that Safaricom’s withdrawal of a job offer from a visually impaired candidate violated his constitutional rights. The court rejected Safaricom’s claim that accommodations were an undue burden, stressing that procedural fairness requires clear communication and transparency regarding accommodations. Safaricom was ordered to pay KES 6 million in damages for violating the candidate’s dignity and fair process rights.

This decision was also decided under the repealed Act but has significant implications for disability rights and employment law in Kenya. It reinforces the legal obligation of employers to provide reasonable accommodations for PWDs and ensure equal access to job opportunities. The case also strengthens the enforcement of anti-discrimination laws, setting a precedent for holding corporations accountable when they fail to uphold inclusivity. Additionally, it highlights the importance of fair administrative action, ensuring that recruitment processes are transparent and do not disadvantage individuals based on disability.

Best Practices for Employers

To ensure compliance while mitigating risks, employers should:

• Revise HR policies to include non-discrimination and accommodation mechanisms.
• Conduct workplace accessibility audits and implement necessary modifications (e.g., ramps, flexible schedules, assistive technologies).
• Train HR and management staff on disability rights and inclusion.
• Establish internal grievance mechanisms for disability-related concerns.
• Document all accommodation requests and employer responses, particularly in cases of undue hardship.
• Track and report employment statistics of PWDs to comply with Section 21(3) of the Act.
• Engage legal counsel for compliance and dispute resolution.
• Partner with NCPWD for resources and guidance.

Conclusion

The Persons with Disabilities Act, 2025 marks a significant shift toward inclusive employment, making it a legal requirement rather than a corporate social responsibility initiative. Employers must proactively adapt to these obligations to minimize legal risks, improve workplace inclusivity, and benefit from financial incentives.

For further guidance on compliance, policy development, or legal representation in disability-related employment disputes, contact Daniel Musyoka and Karen Muthee.