Maternity and paternity leave are essential benefits that protect the rights of working parents, ensuring they can balance professional responsibilities with the demands of raising a family. In Kenya, these leaves are governed by the Employment Act of 2007, which outlines the rights, responsibilities, and entitlements of employees and employers concerning parental leave.
Maternity Leave in Kenya
Duration and Eligibility
Under Section 29 of the Employment Act, 2007, female employees are entitled to three months (90 calendar days) of maternity leave. This entitlement applies to all female employees who are in formal employment and have notified their employer in advance of their pregnancy and intended leave period.
This leave is designed to provide mothers with adequate time to recover from childbirth and bond with their newborns. Employers are required to grant this leave and ensure that the employee can return to her previous position or a similar role with equivalent terms and conditions upon her return.
Notification Requirement
To qualify for maternity leave, an employee must provide at least seven days’ notice in writing or as soon as is reasonably practicable. This notice must include the expected leave start date. Further, a female employee who seeks to exercise any of the rights related to maternity leave shall, if the employer requires, produce a certificate of her medical condition from a qualified medical practitioner or midwife.
Pay During Maternity Leave
Maternity leave is fully paid, and employers are prohibited from deducting an employee’s wages or altering the terms of their employment during this period. The law protects employees from discrimination or dismissal due to pregnancy or maternity leave.
Legal Protections
The law offers robust protections for employees on maternity leave. Employers are prohibited from dismissing or demoting an employee during this period, as such actions would constitute discrimination under Article 27 of the Constitution of Kenya, which guarantees equality before the law, which entails the full and equal enjoyment of all rights and fundamental freedoms.
Additional Protections
A woman who has taken maternity leave can return to her job or an equivalent position with the same pay and benefits. Employers must provide reasonable accommodation for breastfeeding mothers, such as designated lactation rooms or breaks for nursing. Also, the female employee is still entitled to their annual leave beyond the maternity leave.
Paternity Leave in Kenya
Duration and Pay
Male employees in Kenya are entitled to two weeks of fully paid paternity leave following the birth of their child. This provision allows fathers to support their partners and bond with their newborns during a critical time.
Like maternity leave, paternity leave is compensated at 100% of the regular salary, ensuring that financial burdens do not prevent fathers from taking this essential time off.
Notification Requirement
Employees must notify their employer in writing of their intention to take paternity leave. The notice should ideally be given at least seven days before the leave is intended to commence.
Employer Obligations
Employers are required to:
- Grant maternity and paternity leaves as stipulated by the law.
- Maintain the employee’s terms and conditions of employment during their leave.
- Protect employees from any form of discrimination or dismissal due to parental responsibilities.
Legal Context and Challenges
The disparity in the duration of maternity and paternity leave has been challenged in court. A notable case is Benjamin v Ministry of Labour & 5 others; Senate (Interested Party) (Petition E001 of 2022) [2023] KEELRC 1439 (KLR) (31 May 2023) (Judgment)
Dr. Magare Gikenyi J. Benjamin challenged the constitutionality of Section 29 of the Employment Act, 2007, which grants different maternity and paternity leave durations to female and male employees. He argued that this differentiation was discriminatory and contrary to Article 27 of the Constitution, which prohibits discrimination.
The court, however, dismissed the petition. It held that the differentiation in the duration of maternity and paternity leave was justified and not discriminatory under Article 27 of the Constitution. The court reasoned that maternity leave serves a specific purpose related to the health and well-being of the mother and child, distinct from paternity leave’s purpose. The Court acknowledged the unique physiological and health needs associated with childbirth for women. Therefore, the different durations were deemed reasonable and aligned with the Constitution.
Current Discussions and Future Directions
There is an ongoing discourse about extending paternity leave in Kenya to promote greater gender equity in parenting responsibilities. Advocates argue that more extended paternity leave could enhance family well-being and child development by allowing fathers more time to engage with their children from birth.
Comparatively, many countries offer longer periods of parental leave that can be shared between mothers and fathers, suggesting a potential area for reform in Kenyan legislation.
Frequently Asked Questions (FAQs)
Can maternity leave be extended?
Yes, employees can extend maternity leave using their accrued annual leave or by taking unpaid leave. However, such extensions must be agreed upon with the employer.
Are employees entitled to maternity leave for stillbirth or miscarriage?
The law does not explicitly address stillbirth or miscarriage. However, employees may negotiate with their employer for leave or other accommodation in such cases.
Are there protections for adopting parents?
Yes, adoptive parents in Kenya are entitled to pre-adoptive leave under Section 29A of the Employment Act. This provision allows employees who are adopting a child to take one month of pre-adoptive leave with full pay from the date the child is placed in their continuous care. To qualify for this leave, the employee must notify their employer in writing at least 14 days before the placement of the child. This notification should include documentation from the adoption society, such as a custody agreement and an exit certificate, which confirms the employee’s authority to take custody of the child. This leave is designed to support bonding between the adoptive parent and the child during this significant transition.
Can an employer deny maternity or paternity leave?
No. Denying maternity or paternity leave violates the Employment Act and can attract penalties.
Challenges and Opportunities
Despite the legal provisions, challenges persist, such as:
- Limited awareness of rights among employees.
- Non-compliance by employers, especially in informal sectors.
- Lack of clear policies on adoption and parental leave for same-sex couples or guardians.
Opportunities for improvement include:
- Enhancing awareness campaigns about parental rights.
- Advocating for longer paternity leave to promote gender equality in caregiving.
- Encouraging employers to adopt family-friendly workplace policies.
At Njaga & Co. Advocates, we are committed to supporting both employers and employees in navigating the complexities of maternity and paternity leave laws in Kenya.
For Employers:
- Ensure Compliance: We offer expert legal advice to help you understand and comply with the Employment Act regarding parental leave, ensuring that your policies align with current laws.
- Develop Family-Friendly Policies: Let us assist you in creating comprehensive parental leave policies that promote a supportive work environment, enhancing employee satisfaction and retention.
For Employees:
- Know Your Rights: If you have questions about your entitlements regarding maternity or paternity leave, our team is here to provide guidance and support.
- Legal Representation: Should you face any challenges or disputes related to parental leave, we can represent your interests and help you secure your rights.
Contact us today for personalized legal services tailored to your needs. Together, we can foster a more equitable workplace.
Conclusion
Maternity and paternity leave in Kenya promote work-life balance and support family wellbeing. While the legal framework provides a solid foundation, continuous efforts are needed to ensure compliance and address emerging parental needs. As societal norms evolve, so too may the legal framework governing parental leave, aligning more closely with international standards and best practices. Employers and employees alike should familiarize themselves with these rights to foster a supportive and equitable work environment.