Mothers & Employment
12 months ago
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’.
Disclosure 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.
That 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.
Termination 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.
This is currently not provided for in Kenya.
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.
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