Discrimination: Big fight to have men get 91 days paternity leave like women

 Maternity leave is a right granted to female employees to take time off work, following childbirth. [iStockphoto]

The Employment and Labour Relations Court has refused to dismiss a case in which men sought equal paternity leave days as women.

Justice Stella Rutto dismissed objections filed by the Ministry of Labour and the Attorney General, who argued that the labour court lacked jurisdiction over Dr Magare Gikenyi's case because he was neither an employee nor a union official.

According to the Ministry and the AG, the High Court, not the Labour Court, is the best place to argue about equal paternity and maternity leave days.

However, the judge said the court had the authority to determine whether section 29 of the Employment Act discriminated against men by providing women with 91 days of maternity leave while men only have 14 days.

"To that end, it is my determination that the issue in dispute herein is one of employment and labour relations, and thus this Court has jurisdiction to resolve it."

The sections of employment law that Gikenyi is attempting to have declared unconstitutional, according to the judge, revolve around maternity leave for female employees.

"Maternity leave is a right granted to female employees to take time off work, following childbirth. This is therefore one of the rights granted to employees under the Employment Act. As such, it is a right that accrues within an employment relationship. Thus, does this Court have jurisdiction to determine this issue?" she said.

In the case, the surgeon is requesting that the court rule that section 29 of the Employment Act is discriminatory based on an employee's gender at work.

 Women in Kenya are entitled to three months of maternity leave - fully paid by the employer. [iStockphoto]

Section 29 of the Act allows women to take up to three months maternity leave which is fully paid by the employer. The woman is only required to give a seven-day notice to enable her employer to make the necessary adjustments.

On the other hand, men have 14 working days of paid paternity leave.

Gikenyi wants the law to guarantee working men the same number of days off for paternity leave as women get for maternity leave.

The surgeon wishes to have Section 29 of the Employment Act declared discriminatory against male parents, whom he believes should be treated equally, as other sections of the Constitution do.

"There is outright discrimination in terms of the duration of leaves of mothers and fathers of the same child. The differentiation or discrimination of duration of maternal and paternal leaves is not fair," Gikenyi's case reads.

He says the contested law gives mothers a three-month maternity leave, with full payment of salaries and allowances. According to him, section 29 contradicts section 27 of the same Act which provides that no employee should be subjected to any form of discrimination based on sex, colour, language, religion, nationality, ethnic, pregnancy or other opinions.

"In the circumstances, this radical, irrational and illegal discriminatory policy which has been made by the respondents to defenceless Kenyans ought to be declared illegal, null and void and be quashed," he said.

Citing scientific research by Rolle et Al (2019), titled: Father Involvement and Cognitive Development in Early and Middle Childhood Gikenyi says men were bearing a significant role in the development of children soon after birth and they should be allowed enough time to participate in the early cycle of child development.

  A father has a role in the development of a - study. [iStockphoto]

"The study shows clearly that a father has a role in the development of a child and that the first few days after the child is born are important its development," he said.

In the case, Gikenyi has enjoined Federation of Kenya Employers, Central Organization of Trade Unions, Trade Unions Congress of Kenya, the National Assembly and Senate as interested parties.

"The matter being determined transcends the circumstances of the particular case. It is not just mere discrimination of an individual employee, but it's large scale discrimination which will have an impact on a number of employees and has a significant bearing on public interest," Gikenyi said.

He added: "The issues to be decided are not mere questions of law but substantial queries of law and their resolution will have material bearing on the respondents, employers and employees and will significantly affect the labour market and all sectors of the economy including the Judiciary itself."

In their reply, Labour Ministry and AG told the judge he was forum shopping adding that the case was incurably defective.

They had asked the judge to strike it out.