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Introduction

Yesterday was Mothers Day, it’s, therefore, a good time to reflect on the employment laws that affect mothers in Kenya. HAPPY MOTHERS DAY to all my readers who bear the honourable title of ‘mother’.

sayDisclosure of pregnancy during interviews

Is a potential employee bound to disclose their pregnancy? I’ve interacted with a number of employers who have expressed a feeling of betrayal at the discovery that a new employee is pregnant and made no disclosure of this during the recruitment process.

Article 27 of the Constitution prohibits discrimination on any ground including pregnancy.

Section 5(3) of the Employment Act, 2007 also prohibits discrimination against an employee or prospective employee on grounds of pregnancy.

Article 31 of the Constitution provides that every person has the right to privacy, which includes the right not to have information relating to their family or private affairs unnecessarily required or revealed.

The upshot of the above is that a potential employee is under no legal obligation to disclose their pregnancy and they should not be interrogated about whether or not they are pregnant or asked to do a pregnancy test. The only exception is where the inherent requirements of the job necessitate disclosure where, for example, where there may be a potential danger to the child. This is recognized in Section 5(3) of the Employment Act, 2007.

If a potential employee discloses the pregnancy and fails to secure the job, unfortunately, it’s nigh impossible to prove that the failure was related to the pregnancy.

food for thoughtThat said, I don’t think there is any doubt that the failure by a potential employee to disclose a pregnancy, especially one that’s advanced, affects the trust of the employer. Recently, a lady was hired for a very senior position that required her to start her days early and end very late in order to meet investor deadlines etc. Three weeks into the job, she was flat out and at a discussion with her immediate supervisor, she disclosed that she was expectant. The demands of the job had been communicated to her during the interview process and she was also informed that she would need to hit the ground running immediately upon her recruitment. The truth is, her failure to disclose her pregnancy dealt a major blow to her relationship with her superiors. It’s not about the pregnancy, it’s about being forthright in order to manage expectations.

Time of disclosure of the pregnancy

According to Section 29 of the Employment Act, 2007, only 7 days’ notice of the intention to proceed on maternity leave on a specific date is required. This is certainly not adequate notice, therefore, most HR policies and manuals require a longer notice period for planning purposes.

fireTermination of a pregnant employee

I was once asked to draft a mutual separation agreement for an employer who wished to separate with his employee on mutually acceptable terms. A couple of weeks later, when I enquired whether or not the separation happened, I was informed that the employer had discovered that the employee was expectant and was, therefore, hesitant to go ahead with the proposal.

Almost related to that, I have also been asked whether a redundancy notice can be served on an employee who is on maternity leave.

As long as an employer has valid reasons for terminating the employment and is able to comply with the termination procedure, there is no legal impediment to bringing the employment to an end. Because of the obvious logistical problems and the fact that the employer must be ready to deal with an argument that the termination was related to the pregnancy or maternity leave, it’s easy to see why it makes sense to wait for the pregnancy and maternity leave to end prior to doing anything.

According to Section 46 of the Employment Act, the termination or imposition of a disciplinary penalty due to a female employee’s pregnancy, or any reason connected with her pregnancy, is unfair.

This does not mean that an expectant employee cannot be terminated, it means that the reason for termination should not be the pregnancy. If the reason for termination is performance then off course due consideration must be given to the fact that pregnancy,  in some cases, does impact performance.

Adoption leave

This is currently not provided for in Kenya.

 

breastfeeding centres

At Nestle

Breastfeeding stations in workplaces

 

The Health Bill, 2015 was passed but is yet to receive Presidential assent. Under it, it’s mandatory for employers to provide a lactation station/room for nursing mothers. The station should have all the necessary facilities, including electric outlets for breast pumps, refrigerators and appropriate cooling facilities.

The employer is also required to grant all nursing mothers break intervals of not more than one hour in every eight working hours. This is in addition to the regular times off. The employers should also provide ‘comfortable’ seats for mothers to ensure the breastfeeding experience is as relaxed as possible.

I understand companies like Safaricom and Nestlè already have such facilities. 

When the house help fails to show up or the child is sick and you need time off

You will have to use your annual leave days.

***THE END***

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About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. Advocates. She has practiced employment law for over 10 years. She is a repository junkie and a lover of editing.

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Comments

  1. Jackline kimaru says:

    When an employee resumes from maternity leave can you take her to another workstation geographically or just within the company.

    1. Anne Babu says:

      The requirement is for the employee to return to the job which she held immediately prior to her maternity leave or to a reasonably suitable job on terms and conditions not less favourable than those which would have applied had she not been on maternity leave.

      Generally if you’re going to take an employee to another work station, that should be provided in the contract. If that is permitted under the contract you may re-deploy on similar or better terms. I think it would be prudent to give notice of such re-deployment so that she can make suitable arrangements.

  2. Joyce Lisanza says:

    Anne

    Thank you for your input which is very enriching. There was a post on maternity leave days changing from calendar to working days. Do you have any information on the same in line with the latest developments in the Employment Law?

    1. Anne Babu says:

      That was a proposed amendment which has not been passed. We’ll send an update if it’s passed.

  3. sasaka says:

    It is an offence for an employer to dismiss an employee while she is on maternity leave?

    1. Anne Babu says:

      It is only unlawful if the termination is because of the pregnancy. Otherwise the termination can be done as long as there is a valid reason and the termination procedure is followed.

      1. sasaka says:

        While on maternity leave the employee is not directly engaged in her duties, therefore what valid reasons could be brought against the employee to have her services terminated ? Can that be termed as constructive dismissal?

        1. Anne Babu says:

          Performance and misconduct issues that arose prior to the maternity leave.
          Constructive dismissal is an indirect dismissal i.e no termination letter is issued, it is construed from the circumstances created by the employer.

          1. sasaka says:

            Noted. Thank You

  4. Lisa says:

    I have a question, my organization is recently retrenching staff but they are doing it differently. They are forcing people to resign using intimidation. What rights do i have if i have already resigned and am six months pregnant and i want to appeal.

    1. Anne Babu says:

      The first step should be to write to the company to formally lodge a complaint against the forced resignation. Also consider a complaint to the labour officer.
      Depending on the evidence that you have to show that the resignation was forced, you may be able to satisfactorily file a case for constructive dismissal.

  5. terry says:

    What are my rights concerning maternity leave days when I experience a miscarriage?

    1. Anne Babu says:

      Sorry to hear of your loss. This is not spelt out in the law and it is left to the employer to decide. Some employers allow the employee to take the full leave to enable them to deal with the loss. This is something that you should discuss with your employer. As a matter of compassion, you should be given at least compassionate leave.

  6. Anonymous says:

    Is a woman on Probation type of contract entitled to a paid maternity leave?

    1. Anne Babu says:

      Yes, for as long as the employee is employed by the Company.

  7. Lucy says:

    Hi Anne, is it legal for a project management company not to issue a contract to a female employee proceeding on maternity? This is based on the fact that the company pays its employees based on number of days worked.

    1. Anne Babu says:

      For that sort of practice to be legal, it should be clearly written in the contract that the wage is paid for the days worked, otherwise it is not lawful.

  8. Maureen says:

    Hi Anne,

    Is it legal to resign during your maternity leave?

    1. Anne Babu says:

      Yes it is. You are as much an employee while on leave as you are when on duty.

      1. Maureen says:

        But my company has this clause that states ;

        On returning from maternity leave, employees are required to work for a period of 6 months from the date of their return. If the event that the employee fails to return after the pregnancy or returns for a period of less than 6 months, the remuneration paid for the maternity leave period or any part thereof must be repaid.

        Before being employed,you have to sign all this policies.Can they use this against me of i resign? What are the chances of the company taking legal action against me if i go ahead and resign?

        1. Anne Babu says:

          That clause is illegal and cannot stand in court. One is at liberty to resign at any time.

  9. Daniel Ongoya says:

    Anne,
    Please advise exactly when the counting of the 90 calenda days maternity leave should start. Is it on birth of child or any days taken before the child is born?
    When a pregnant employee proceeds on absence before she delivers, do we give annual leave or count the days as maternity leave?

    1. Anne Babu says:

      It should start when the employee stops working – whether or not the child has been delivered – unless the doctor has granted the employee sick leave.

  10. naomi says:

    Hi Anne,

    Is Antenatal Clinic covered in the sick leave?

    1. Anne Babu says:

      You need to be sick in order to claim sick leave.

  11. Lucy says:

    Good morning Anne, an expectant employee has asked to to begin her maternity leave one month earlier on account of a difficult pregnancy i.e. she needs to rest to avoid harming the baby. How should this be treated? I had asked for a medical report from the doctor however, this might not be available.

    Is it legal to count this month as part of the maternity leave?

    Even if the medical report were provided, the company only allows for 14 days of sick leave.

    1. Anne Babu says:

      It would be sick leave for the 14 days and annual leave for the rest or unpaid leave if she does not have any annual leave days.

  12. Ally says:

    Hi Anne,
    My employer has asked me to begin my maternity leave after I called in sick 3 days. Is there a law against forcing one to start maternity leave when they are not ready to do so?

    1. Anne Babu says:

      It is you to determine when the maternity leave commences. If you are sick and you have sick leave days then you are at liberty to take those days prior to starting your maternity leave.

      1. Ally says:

        thanks for the reply. It didnt seem to be up for discussion with him. So what I’ll do is get a sick note from the day he is asking me to commence my maternity leave

  13. Elizabeth says:

    Is there any article protecting a pregnant womn from long working hrs (more than 12hours).

    1. Anne Babu says:

      The working hours are supposed to be regulated by the employer but in any event working 12 continuous hours is cruel treatment which is contrary to the Constitution at the very least.

  14. susan wekeda says:

    If a company has been evicted and the employer wants to downsize the staff,can a pregnant woman be affected?

    1. Anne Babu says:

      Yes, downsizing has to do with operational requirements. Any position can be affected depending on company’s needs. It’s not about the person but rather the position.

  15. Betty says:

    Hello Anne,
    Should there be a special treatment to an employee who is about to go for maternity leave when a company is retrenching?
    Considering is more hard for such an employee to secure employment at this particular time.

    1. Anne Babu says:

      The law does not provide for any special treatment for such a case.

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  18. Anonymous says:

    Hi Anne,

    Iam currently working in a certain construction company for the past 4yrs but on contract basis upto now. I have signed a contract till December and my maternity leave starts in January.

    Does the law allow me to be paid while on maternity leave despite the fact that i may not have renewed/signed a new contract?

    1. Anne Babu says:

      If you’ll not be on a contract at the time, you’ll not be considered an employee hence you’ll not be entitled to maternity leave which is a right of employees only. Depending on the wording of the renewal clause in your contract and the reasons for non-renewal, you may have a claim for unfair termination if your contract is not renewed.

  19. Meecy says:

    Can an employee resuming from maternity leave be served with a termination letter on the grounds of redundancy.

    1. Anne Babu says:

      Yes, as long as the redundancy is genuine.

      1. Meecy says:

        Genuine in terms of what

        1. Anne Babu says:

          The company should be carrying out a legitimate redundancy on legitimate grounds and not a cover up for targetted terminations.

          1. Martin says:

            Dear Anne

            What happens when an employee takes maternity leave but does not intend to return to her position but doesnt want to resign so that she enjoys the three months paid maternity leave ? She has confided in her colleagues that she is not coming back and is also pulling out her sacco savings but to management she pretends she is just taking normal maternity leave. This is unfair as the company is kept in abeyance expecting the employee back so does not recruit for her replacement and when the day comes she resigns ? Can the employee be bonded ?

          2. Anne Babu says:

            She is required to give notice of termination. The notice can be served while she is on maternity leave. If notice is not given, the employer can sue her to recover the notice pay. There’s not much an employer can do to an employee who does not give notice other than commencing legal proceedings.

  20. joash mbulika says:

    Anne,
    Assuming that an employee is pregnant for about and has not shared the information with her boss for purposes of planning a reliever when she goes on leave OR just for information, HAS SHE COMMITTED AN EMPLOYMENT OFFENSE?

    1. Anne Babu says:

      She should share at least 7 days before going on leave, otherwise she is not entitled to go on leave.

  21. Nura Mohamed says:

    Hi Anne,An expectant employee was advised to commence early maternity leave by a doctor, due to her condition the employee is currently 29 weeks,is it acceptable by law to start maternity leave that early

    1. Anne Babu says:

      She should take sick leave until the baby comes.

  22. this reminds me of my former boss. whenever i requested for time off to attend family issues he would tell me that he doesnt like working with women because their leaves are unpredictable

    1. Anne Babu says:

      Sad.

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