A digest of a recent decision by the Supreme Court of Kenya on the employer’s duty to reasonably accommodate sick employee, indirect discrimination at the work place and employee’s right to be heard before termination of employment The Supreme Court of Kenya [Mwilu (DCJ & VP), Ibrahim, Wanjala, Njoki & Lenaola, SCJJ] in a decision delivered on 22nd October 2021 held that an employer must provide reasonable accommodation to a sick or incapacitated employee or to demonstrate that they would incur undue hardship in providing such accommodation.

The court concluded that the employer’s failure to reasonably accommodate the employee amounted to indirect discrimination. The court also addressed an employee ’s right to be heard before termination of employment for incapacity.