The landscape of employment law is evolving and parental leave continues to play a crucial role in promoting gender equity and family welfare. In Kenya, there exists three forms of parental leaves: Paternity, Maternity, and Pre-adoptive Leaves enshrined in the Employment Act 2007. These provisions offer vital protections to both fathers and mothers in formal employment by ensuring that they can take time off to care for their newborns and adopted children without compromising their job security or income.
- Maternity Leave in Kenya
Entitlement
Under Section 29 of the Employment Act, female employees are entitled to three months (90 calendar days) of maternity leave with full pay. This leave can begin as early as the employee deems necessary, provided sufficient notice is given to the employer.
Expectant employees are expected to notify the employer in writing at least 7 (seven) days before the intended start of her leave, or as soon as it is reasonably practical. If required by the employer, she shall produce/ attach a medical certificate as to her medical condition from a qualified medical practitioner or midwife.
Job Security
Upon return from maternity leave, the law guarantees the right of a female employee to resume her previous position or be allocated a reasonably suitable alternative. Her terms of employment must remain no less favorable than they were prior to her leave. This protects against demotion, salary reduction, or wrongful dismissal due to pregnancy
Extended Leave Options
Where necessary, a mother may request additional leave by utilizing her annual leave, sick leave, or unpaid leave upon mutual agreement with her employer.
Protection from Discrimination
It is unlawful for an employer to dismiss or treat an employee unfairly due to pregnancy or her decision to take maternity leave. Such actions constitute discrimination and may attract legal sanctions. In the matter of Miriti v Co-operative Bank Kenya Limited [2023] KEELRC 2452 (KLR), it was held that placing employees on Performance Improvement Plans(PIP) while pregnant constitutes unfair employment conditions. The European Court of Human Rights in Jurcic v. Croatia, Application Number 54711/15, underscored that pregnancy discrimination, is sex discrimination.
Regressive employment attitudes and practices that constitute direct or indirect pregnancy discrimination continue to persist, as highlighted by the Equality & Human Rights Commission (Great Britain) in their report titled Pregnancy and Maternity Discrimination Research Findings Such practices include: the perception by some employers that pregnancy represents a financial liability. Employee absences related to pregnancy, childbirth, and maternity leave are often regarded as detrimental to workplace productivity.
- Paternity Leave in Kenya
Entitlement
Male employees are entitled to two weeks (14 calendar days) of paternity leave with full pay as per Sec 29(8) of the Employment Act.
The leave may be taken at once or in any manner and on dates convenient to the employer and the employee.
Eligibility and Requirements
The application for paternity leave shall be accompanied by sufficient evidence of the birth of the child in respect of whom the application is made.
Limitations
Unlike maternity leave, paternity leave is limited to 14 days per year, regardless of the number of children born within that year. This disparity with maternity leave has been of contention as it was seen in the case of Benjamin v Ministry of Labour & 5 others; Senate (Interested Party) [2023] KEELRC 1439 (KLR) whereby the Plaintiff, challenged the constitutionality of section 29(8) of the Employment Act. He argued that the differentiation was Discriminatory and contradicted Article 47 of the Constitution that prohibits discrimination. However, the Court dismissed the petition, finding that the difference in the length of maternity and paternity leave was justified and did not amount to discrimination under Article 27 of the Constitution. It explained that maternity leave serves a distinct purpose focused on the health and well-being of both the mother and the newborn, which is different from the purpose of paternity leave. The court recognized the unique physical and health-related needs women experience during and after childbirth. As such, the variation in leave durations was considered reasonable and constitutionally acceptable.
- Adoptive Leave Provisions
Kenyan law section 29A of the Employment also recognizes the rights of adoptive parents. Employees who legally adopt a child are entitled to one month of pre-adoptive leave with full pay from the date the child is placed in their continuous care. The employee must provide 14 days’ written notice to the employer and include relevant documentation from a registered adoption society.
Legal Protections and Enforcement
The Employment Act safeguards the rights of employees who take maternity or paternity leave. Employers are prohibited from terminating, penalizing, or harassing employees for exercising their right to parental leave. Any violation can result in legal action before the Employment and Labour Relations Court.
Final Thoughts
The right to parental leave is a cornerstone of family and labor law in Kenya. While the current provisions are progressive, continued advocacy is necessary to improve gender parity, especially with regard to paternity leave, which remains relatively limited. As the workforce evolves and family dynamics shift, the law will need to keep pace with modern realities, ensuring that both parents can adequately bond with and care for their children without fear of losing their livelihoods.
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