Sunday law: Is pregnancy a ground for dismissal?
I joined an institution three months ago and currently about to complete my probation. A few weeks ago, I discovered that I was pregnant and informed the human resource office of the development.
Beth, Nairobi Dear Beth,
No. Constitutionally, no one should be discriminated against on the basis of sex or pregnancy. Morever, even the Employment Act which defines the rights and responsibilities in employment outrightly outlaws discrimination of employees on grounds of pregnancy. Specifically, Section 5(3) of that Act states that: No employer shall discriminate directly, or indirectly, against an employee, or prospective employee, on the ground of pregnancy... Legally, a pregnant employee that has been unduly fired is required to present facts or proof that they have been discriminated against at because of their pregnancies.
SEE ALSO :Uhuru awards KIE for best standIn daily practise, organisations such as FIDA that fight for rights of women handle several of such matters in courts on behalf of affected employees.
Courts have stated that the affected employee needs to establish that she qualified for the job that she lost and also suffered adverse employment action directly as a result of her pregnancy. It may also be necessary to establish that there is a nexus between the adverse employment decision and her pregnancy.
The International Labour Organisation Maternity Protection Convention also provides that a pregnant employee is guaranteed maternity leave, and the right to return to the same or equivalent job at the end of her leave. It also requires the employer to prove that the dismissal of the employee was not related to pregnancy.
The law recognises that some employers are likely to discriminate against pregnant employees over prejudices and fear of loss of productivity during the three-month maternity leave.
SEE ALSO :Day of the Girl Child: Are we there yet?Some employers also fear that their insufficient resources may not support temporary employees during such absence and of course the belief that on return from maternity leave, the female employee will perpetually request for days off for baby care.