How court ruling offers a lesson on handling of expectant workers
Employers should be careful how they treat their expectant female employees.
What you need to know:
- Court filings showed that during this period when she was evaluated poorly, Ms Caroline Gakii Miriti had made full disclosure about her pregnancy.
- It also coincided with her maternity and annual leave hence it wasn’t possible to judge her purported performance while she was out of work.
Caroline Gakii Miriti joined Co-operative Bank of Kenya in July 2011, starting as a graduate clerk before she was posted to the lender’s Kiambu town branch as a teller and later to its Nairobi’s Tom Mboya outlet on October 24, 2011, as a micro-credit officer.
Things were looking up for the youthful graduate as she went about her duty at the Tom Mboya outlet until July 6, 2017, when her employer terminated her contract for alleged “unsatisfactory performance”.
Startlingly, her contract was terminated on the ground that her performance for two consecutive quarters in 2016 and quarter one of 2017 was unsatisfactory yet, this period coincided with Ms Miriti’s pregnancy, hospitalisation due to complications related to her condition, and later birth of her child.
Offended by the sacking, she filed a suit in court, which exposed how Co-operative Bank disregarded Ms Miriti’s health challenges due to pregnancy complications when it declared her an underperformer and enrolled her in its performance improvement programme (PIP) before firing her.
“While the respondent (Co-op Bank) cannot be faulted for finding that the claimant’s performance was below par in the first quarter of 2017, the respondent can be blamed for finding fault with the claimant’s performance for the first and second quarters of 2016,” Justice James Rika of the Employment and Labour Relations Court said in a judgement last week.
Court filings showed that during this period when she was evaluated poorly, Ms Miriti had made full disclosure about her pregnancy and the medical challenges that went along with it. It also coincided with her maternity and annual leave hence it wasn’t possible to judge her purported performance while she was out of work.
“The result was that the respondent ended up discriminating against the claimant, on the ground of her disclosed pregnancy. Employers should be careful not to place pregnant employees on PIP during maternity leave, when the employee cannot apply herself fully to the demands of office” Justice Rika said.
“How do you evaluate an employee, over a period she is away on maternity leave, and experiencing the challenges of new motherhood? How is the employee expected to improve her performance, while experiencing a difficult pregnancy and nursing an infant, or infants as the case may be?” the judge posed.
The mistreatment during pregnancy and irregular sacking of Ms Miriti earned her a symbolic Sh1,920,190—comprising Sh907,208 for unfair termination and Sh899,581 for pregnancy discrimination.
Court proceedings revealed Ms Miriti’s woes with her former employer began after she was hospitalised over pregnancy complications at Nairobi Hospital, in November 2015 and again on March 7, 2016, when she subsequently delivered a baby girl.
She then took her three-month maternity leave and combined it with a one-month annual leave, which ended in July 2016.
On September 29, 2016, she received a letter from her employer Co-op Bank inviting her for a Performance Improvement Programme (PIP) review, regarding quarters one and two-- four months covering March, April, May, and June 2016.
Ms Miriti presented herself for the meeting with her employer during which she explained that she was in and out of hospital during part of the period under review, and on maternity and annual leave for the rest of the period. She said that could not perform her duties optimally, due to maternity and post-maternity woes.
On February 28, 2017, she received a second invitation for a PIP review meeting relating to the full year 2016 and subsequently received a warning letter dated May 15, 2017, advising that the Co-op Bank was considering terminating her contract on account of unsatisfactory performance. The bank made good its threat and terminated Ms Miriti’s contract on July 6, 2017, because her performance for two consecutive quarters in 2016 and quarter one in 2017, was unsatisfactory.
Spooked by the decision she appealed against the termination of contract on September 5, 2017, but her employer did not respond.
Ms Miriti escalated the matter to her trade union which reported the matter as a trade dispute to the Cabinet Secretary for Labour on December 19, 2017. The Conciliator under the Ministry of Labour, heard both parties, found that termination was unfair, and recommended that she be paid her terminal dues by the prevailing Collective Bargain Agreement (CBA), and eight months’ gross salary in compensation for unfair termination.
Co-op Bank in its submission maintained that the termination of Ms Miriti’s contract was fair and lawful, arguing that it proved valid reason, and demonstrated procedural fairness.
The lender said it had an employment policy or practice for measurement of performance and she had been informed of the intention to fire her based on the dismal performance. It said that a rating of 70 per cent and below, was deemed unsatisfactory.
Justice Rika, however, admonished Co-op Bank for evaluating Ms Miriti for work performance in quarter one and two 2016 while she was on maternity and annual leave.
“Evaluating the claimant under quarters 1 and 2 of 2016, while she was on maternity and annual leave, and bearing the heavy burden of motherhood and the strains of associated illness, was not a fair employment decision. How was she expected to apply herself fully at work, while giving birth and taking care of an infant?” the judge said.
Medical records presented by Ms Miriti indicate that she gave birth again, on September 25, 2017, which was two months after termination of her contract. A discharge summary from the Nairobi Hospital Newborn Unit showed that she was discharged on September 26, 2017, and her contract was terminated on July 1, 2017, about two months before the second birth of her baby boy.
Ms Miriti however did not disclose her second pregnancy to her employer—a matter that the court said may have been out of uncertainty about how the employer would react.
“It is probable that the claimant was shy about disclosing that she was pregnant again, in under one year after the birth of March 7, 2016. She was probably unsure about how the respondent would respond to her disclosure, the respondent having already been engrossed in taking the claimant through unwarranted PIP,” justice Rika observed.
“The claimant had spent four months away from work on maternity and annual leave and would be entitled to another three months of maternity leave, in the succeeding year, which would dent her productivity at the workplace. These could have been some of the unstated reasons, why the claimant did not make full disclosure to the respondent, concerning her rapid pregnancies” the judge said.
