Paid Maternity Leave Is A Constitutional Right

The Employment and Labour Relations Court recently awarded a former employee Kshs.2,274,051.60 which included Kshs.1,500,000 as damages for discrimination on account of her pregnancy and three months pay on account of maternity leave.


Facts of the Case

The employee submitted a request for maternity leave on 26th January 2018. The employee intended to begin her maternity leave from 5th March 2018 and return to work on 5th June 2018. The employer approved the 3-month maternity leave.

After a short while, the employer rescinded the approval and required the employee to give up all benefits and pay during the maternity leave before the leave could subsequently be approved. The employee refused to waive her entitlement to paid maternity leave despite various meetings with her employer who insisted that the employee forfeit paid maternity leave. The employer then served the employee with a letter of termination dated 1st March 2018 citing financial hardship.

The court in its judgment ruled that the employer had failed to prove his case for financial hardship and had also failed to follow the statutory procedure for redundancy. The court found that the employer had terminated the employee’s employment a few days to the date she was set to proceed for maternity leave. The court added that the employer’s conduct was discriminatory, unfair, and unlawful and held that he terminated the employee based on her pregnancy. A fact made evident when the employer hired another employee shortly after terminating the employment of pregnant employee.

The Law

The Employment Act provides that every female employee is entitled to three months of maternity leave with full pay. The Employment Act further provides that employees have a right not to be discriminated against on account of pregnancy anchored on the Constitution of Kenya’s Bill of Rights which provides freedom from discrimination Section 46 of the Employment Act provides that an employee’s pregnancy or any matter connected with pregnancy does not constitute a valid/fair reason for termination.

The court, therefore, held that the employee was entitled to paid maternity leave for 3 months and that the amount was payable despite the unlawful termination of the employment of the employee on account of pregnancy.

Case law has continuously shown that employers must be careful in undertaking the termination of employment. The reason for termination must be valid and fair. The employer must have believed that the reason was true and existed at the time of termination. Employers must in addition follow the statutory procedure for termination. Failure to comply with this places the employer at risk of paying up to 12 months’ salary in damages for unlawful dismissal.


You can read the entire judgment on the case above here.





Read the original publication at Matthew & Partners

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