- Women’s pregnancy cannot and will never be a cause for poor or low yield for an organization with proper management.
- Due to an urgent need to solve this problem, Employment Act Cap 226 Revised Edition 2012 (2007) was enacted to address this issue.
- Employment matters are handled in the Employment and Labor Relations Court, whose jurisdiction is equivalent to that of the High Court.
As a female journalist, I found a rather disturbing discussion amongst women pertaining to their right to be pregnant without being victimized by the organizations they work for.
The worst thing is that such disturbing responses came from fellow women.
These women make their fellow women suffer in silence instead of advocating for their justice or seem to be a new crop of women who will sell their dignified wombs for the organization’s turnover.
In perspective
One of the replies to a woman in distress over why she might have been fired, fearing it was because of her pregnancy, was:
“Perhaps you would need to consider the situation from the company’s perspective. Less than a year, and they are going to need to employ someone to take over your position while still paying you?
Even annual leave starts after working for one calendar year. Probably they haven’t recouped hiring and training cost, and you have an additional cost of maternity coming up…”
If that was not triggering enough, another lady from another group had already experienced injustice.
“Fast forward two years, and I became pregnant again. This time, I was well aware of the company’s status because it was during a transition. While I wasn’t let go, I initiated discussions with my boss and HR again.
Their suggestion was for me to find an intern to cover my responsibilities during my absence. I got someone and trained her. Interestingly, I paid her a monthly sum of 6,000 as there was no stipend,” said someone else.
I sought to seek legal advice on why we seem to be dragging ourselves back to the chains wise women of our past broke us out of.
You need to first understand that employment has been a contentious issue between the employer and employees.
The objective of employment has always been enabling organizations to make profits.
This being a concern, there has been a need to establish guidelines to realize there is a fair practice in employment and that all individuals meet their obligations without discrimination.
The Constitution of Kenya under Article 27 provides for equality and freedom from discrimination.
This provision obliges all employers to treat persons in their organizations equally and take into account their unique needs.
Further, the Constitution under Article 41 provides for labor relations stipulating that every person has a right to fair labor practices.
According to Jebotibin Boiwo, an Advocate of the High Court of Kenya, it is essential to first critically analyze whether pregnancy is an issue of concern in employment.
In the past and in some organizations, women have faced discrimination in the workplace, especially when they get pregnant.
Due to this, in the past, organizations dismissed women whenever they became pregnant.
Constitutional wisdom
Due to an urgent need to solve this problem, Employment Act Cap 226 Revised Edition 2012 (2007) was enacted to address this issue and provide guidelines on how employers should handle female employees during pregnancy.
Section 29 of the Employment Act of 2007 provides for a maternity leave of three months for women, with full remuneration.
“The question of whether compulsory maternity leave can negatively impact an organization can only emerge where the organization is not properly managed or has not considered the labor laws and regulations.
Every organization or employment institution must consider these provisions and adequately prepare to place employees in various departments,” says Adv. Boiwo.
Women’s pregnancy cannot and will never be a cause for poor or low yield for an organization with proper management.
A pregnant woman is entitled to only three months of maternity leave, a clear indication that there is adequate room for the management to prepare and have another person, either the assistant or another employee, step in and fill the gap left when one proceeds to maternity leave.
Pregnancy in an organization is not a barrier to making profits and will never be a basis for the organization’s yield if there is proper management and placement.
When employees properly understand these rights, they will prepare adequately in advance to ensure that in case such occasions arise, there is a proper way of filling the gap left for the period the employee proceeds to maternity leave.
Pregnancy should never be discussed in an organization since the Act has already provided a clear guideline on how pregnant women should be handled by their employers at work.
Handling pregnancy
“To address how organizations should handle the issue of pregnancy of employees, it is advisable to consider several factors.
First, the organization must properly understand employees’ rights and freedoms.
While recruiting and placing the employees, the organization must remember that at any given point, the employees will seek paternal or maternal leave,” says Adv. Boiwo.
Secondly, the organization must be keen when doing placement of employees in an organization. This is important as it will ensure that every department has at least two individuals with similar skills.
Third, an organization needs to do a proper placement and have a gender balance in various departments.
This will greatly help if two or more employees intend to seek maternity leave, which they are entitled to.
Finally, the employer must understand that maternal leave is statutorily provided for and is not based on the discretion of the employer or organization.
This understanding will enable them to draft proper policies.
Filling the gap
Of concern, however, is the question of the role of the employee proceeding to maternal leave in filling the vacancy left.
Adv. Boiwo says, “A pregnant employee proceeding to maternity leave has no obligation to find a solution to the gap left in the organization during her leave.
It is the obligation of the organization to find a suitable person either internally or outsource in case there is none with similar skills to step in during an employee’s maternity leave.”
The organization can find an intern to step in and request the employee proceeding to maternity leave to train the intern to continue with her tasks during her leave.
“This request or arrangement should be initiated by the organization; it is the organization’s obligation to facilitate the intern with a stipend, if any, during the entire period.
The employee proceeding to maternal leave should never be tasked with paying the intern from her savings or salary since she is entitled to the leave,” she explains.
Suing non-compliant employers
If any employer terminates one’s contract on account of maternity leave, she is entitled to take legal action against such an employer.
The employee can file a suit and seek damages for the unlawful termination.
Before proceeding to court, the aggrieved employee must exhaust avenues provided for in her contract, if any.
If she is not satisfied with the decision or if none is provided for in her contract, she can file a suit in court.
Adv. Boiwo explains that an aggrieved person must consider:
“First to have exhausted the dispute resolution mechanism provided in the contract, if any. Two, she must be aware of the jurisdiction where her claim lies.
Employment matters are handled in the Employment and Labor Relations Court, whose jurisdiction is equivalent to that of the High Court.
It has original jurisdiction for employment matters for salaries above KSh80,000. If it’s below KSh80, 000, file a claim at the Magistrates Court.”
When prosecuting your case, present evidence to prove your case, which can be in any format provided it complies with Chapter 80 of the Evidence Act of the Laws of Kenya.
In summary, and per the Constitution and the Employment Act, women, just like any other person, should be treated equally and with dignity in work.
They must enjoy their rights, including the right to maternity leave as stipulated in the Act, and such leave should never be viewed in the employer’s favor or discretion.
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Maternity leave is just like sick leave, annual leave, which every employee is entitled to.
