The Employment and Labour Relations Court last year declined 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 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 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 wants the court to rule that Section 29 of the Employment Act is discriminatory based on an employee’s gender at work. Gikenyi wants the law to guarantee working men the same number of days off for paternity leave as women get for maternity leave.
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.
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“In the circumstances, this radical, irrational and illegal discriminatory policy which has been made by the respondents to defenseless 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.
“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 to 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.