QUESTION: I run a consultancy firm with a few employees. Recently the issue of paternity leave came up and I would like the following clarifications. Is paternity leave allowed like once a year for employees or as many times as one can go, especially for fathers in polygamous marriages? Is this leave for 14 working days or for two weeks inclusive of weekends, and are all companies implementing this policy?
This question brings out issues on to how to handle men when it comes to paternity leave considering that under customary law, men are polygamous and are allowed to have more than one wife.
Section 29(8) of the Employment Act provides that "a male employee shall be entitled to two weeks paternity leave with full pay".
To answer this question, it is important to understand the background and spirit of this particular section.
This is a provision that emanates from international labour laws and is, therefore, not a new matter; the only issue is that the question of polygamy has not been dealt with to help us understand how to address this "African" situation.
The provision originated from the belief that it is important for a father to be given time to bond with a newborn baby to ensure the family unit is strengthened.
From reading of the section, a man is entitled to two weeks, which in my understanding means 14 consecutive days, irrespective of weekends.
Prone to abuse
Further, this is leave that seems only available once a year. Though this is not specifically indicated in the above section, I think the intention of the drafters was for it to be limited to once a year.
It can be argued that the drafters did not take into account the specific circumstance of the African man; however my argument is that had the Act specifically done this, the section would have been prone to abuse.
In Kenya we know of men who have up to 12 wives and if the law allowed it, such a man would be out for paternity leave every month, which translates to every half year.
In essence this would result in the employer not being able to benefit from such an employee.
The Act is meant to protect the rights of both the employer and the employee and as such provisions that seem to oppress one party cannot be allowed in an Act of Parliament.
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My advice would be to only allow paternity leave once a year.
Your other question was whether other companies are implementing this section. Please understand that once laws come into place, every concerned person is required to implement.
You should not implement the same on the basis that others are doing so because if one day an employee reports you to the labour office for failure to implement the provisions of the Act, you may suffer penal consequences irrespective of whether other companies have also failed to implement the laws.