Court denies men extra paternity days

By Kamau Muthoni | 9mos ago | 3 min read

**A father holding his son.** [istockphoto]

A doctor’s bid to hand men at least three months of paid leave upon the birth of a child has flopped.

The Employment and Labour Relations Court (ELRC) has dismissed a case filed by Dr Magare Gikenyi seeking equal paternity leave days for men and women.

While dismissing the surgeon’s arguments, Justice Stella Rutto said that it was justifiable to allow men two weeks while women get rest for three months.

According to the judge, more days for men at home with their wives for three months will be a costly affair to employers.

She asserted that although the Constitution sees both men and women as equal at the workplace, the distinction made in the Employment Act to favour women with more days than their partners after giving birth factors in their biological differences during both pre-natal and post-natal stages.

Justice Rutto stated that while it is a woman who carries the pregnancy, goes through the childbirth process and eventually nurses the newborn after birth, the man’s role is to only offer her support to ease the entire process.

“I do not find it reprehensible or for that fact unconstitutional and discriminatory for Section 29 of the Employment Act to assign different durations of parental leave to female and male employees post childbirth. I say so because males and females differ due to a combination of genetic and hormonal factors. For this reason, male and female employees do not go through the same biological processes during both the prenatal and the post-natal stage,” said Justice Rutto.

Some of the countries that offer the best paternity leave for men include Lithuania, Japan, Estonia, Iceland, South Korea, Spain and Sweden.

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Lithuania offers fathers 30 days of paternity leave paid at 77.58 of their regular earnings. Japan has four weeks, with an 80 per cent salary for fathers.

However, Japan has a problem as ‘workaholic fathers’ fear taking time off. CNN reported that the concern by men is that Japanese men are afraid they will miss out on promotion prospects or will be handed jobs with lesser responsibilities if they take time out for the family.

Justice Stella Rutto dismissed objections filed by the Ministry of Labour and the Attorney General who argued that the labour court had no powers to determine the case filed by Dr Gikenyi as he was neither their employee nor a union official.

In Kenya, men have 14 paternity leave days. In the case, the surgeon was asking the court to find that section 29 of the Employment Act is discriminatory based on the gender of an employee at a place of work.

Section 29 of the Act allows women to take up to three months of 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 days of paid paternity leave.

Dr Gikenyi argued that the law should guarantee employed men the same number of days during paternity leave as women during their maternity break.

The medic wanted section 29 of the Employment Act declared discriminatory against Kenyan male parents whom he said should be accorded equal treatment, the same way other sections of the Kenyan 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,” said Dr Gikenyi.

He noted the contested section of the Labour Act gives mothers a three-month maternity leave, with full payment of salaries and allowances, a treatment he termed a violation of section 27 of the same Act that proscribes 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.