I am six months pregnant and was wondering if I should disclose this to my employer so we can start preparing for my maternity leave. My job is quite demanding, and I would like to train someone to fill in for me when I am gone. Still, there's been layoffs in the company, and disclosing my status could cost me this job. What should I do?
Discrimination of any kind has been outlawed in Kenya. It doesn't matter that one is pregnant, has a disability, or is suffering from any form of terminal disease, or whatever the case. The foundational tenet of inclusivity and equality before the law is articulated in Article 27 of the Constitution. Clause 1 of this Article states that every person has the right to equal protection of the law and equal benefits. Clause 2 further emphasises that equality includes the full and equal enjoyment of all rights and fundamental freedoms. Pregnant women are not any lesser, nor are non-expectant ones any superior.
Employment is part of Clause 3 of Article 27, regarding women and men having the right to equal treatment, including equal political, economic, cultural, and social opportunities. This read, together with Article 41, provides every person a right to fair labour practices, especially reasonable working conditions. From the onset, the law has defined and protected you irrespective of the conditions in life, natural or artificial, that identify you differently in the eyes and practices of man. Informing your employer that you are pregnant and wish to get someone to relieve you of your duties so that the organisation does not suffer owing to your specialised knowledge and expertise of work is noble and presents your appreciation of the professionalism and should not be condemned but praised.
The Employment Act in Section 46 Clause (a) provides that no employer should cite pregnancy or any other condition or reason related to it as a viable and fair reason to dismiss or impose a penalty on any female employee. Such action will not only amount to gross abuse of human rights but will injure the purpose for which Article 27, Clause (5) was provided in the Constitution. It states that a person shall not discriminate directly or indirectly against another on any grounds specified and contemplated in Clause (4) of the same Article, which includes race, sex, pregnancy, marital status, health status, ethnic or social origin, colour disability, religion, conscience, belief, culture, dress language or birth. This Clause, if liberally interpreted, continues to invite more grounds. Should this person be a company or any other organisation, it qualifies as a Legal Person.
This is reiterated in Section 5, Clause 3, Paragraph (a) of the Employment Act, which categorically provides that no employer shall discriminate, directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee on the grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status.
Let this be clear that it is the right and choice of every woman to get pregnant. It is also their right to refuse to get pregnant. Riding on this right and reflecting on several courts' decisions, such as the matter decided by Justice Hellen Wasilwa in Petition No. 16 of 2018, it should encourage you that the Employment and Labour Court takes discrimination as recklessness on the part of employers more so when it is benched on pregnancy. Windsor Hotel and Country Club was ordered to pay its former employee Sh2.5 million for pregnancy-driven dismissal in this case.
Specifically, the Judge noted Section 29 of Clause (2) of the Employment Act, which states that on the expiry of a female employee's maternity leave, as provided in subsections (1) and (3), the female employee shall have the right to return to the job which she held immediately before her maternity leave or to a reasonably suitable position on terms and conditions not less favourable than those which would have applied had she not been on maternity leave.
Also read: Pregnancy puzzle at the workplace
Female employees are entitled to the right to get maternity leave and its extension upon the consent of the employer, similarly, a return to their job, only if the notice to proceed on such maternity leave was given in writing for a period not less than seven days, or reasonable in the circumstances surrounding their specific pregnancy. Clause 7 enumerates that maternity shall not be grounds upon which a female employee forfeits their annual leave, provided for in Section 28 of the Employment Act.
Please inform your employer about your pregnancy, including the plans for a reliever. It is in their interest to uphold the principles of fair labour practice, as provided for in Article 41 of the Constitution, besides the commitments required of employers to observe and fulfil the objectives in the National Action Plan on Business on Human Rights, particularly the measures necessary to meet their responsibility to respect human rights in their operations.
Send your legal questions to [email protected]