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January 24, 2019

Why law protects parents who take maternity or paternity leave

Parental leave is leave taken by parents who wish to take a break from their professional career or to reduce their working time in order to fully devote themselves to the wellbeing of their new born or adopted child.

Parental leave is a right that promotes the best interest of the child; it helps parents to strike a good balance between their work and family commitments.

The purpose of parental leave is to care for your child. This means looking after their welfare and could include making arrangements for the good of your child. Caring for a child does not necessarily mean being with the child 24 hours a day.

Parental leave helps parents spend more time with the child in their early years. It creates time for the child and the parents to bond, gives the mothers time to breastfeed and recover from the challenges that they go through at the delivery stage. It gives the parents time to accompany the child during a stay in hospital and creates room for the parents to appreciate and take care of the early developmental needs of the child.

In Kenya, the leave is a right guaranteed under Section 29 of the Employment Act which provides that a female employee shall be entitled to three months maternity leave with full pay. On return, the female employee has the right to return to the same job she held before her maternity leave. A male employee is entitled to two weeks paternity leave with full pay.

Your employment rights are protected while on paternity leave. This includes your right to pay rises, build up (accrue) holiday, return to work and others.

The Employment Act provides that a female employee shall not forfeit her annual leave entitlement on account of having taken her maternity leave.

Maternity protection allows women to successfully combine their productive and reproductive roles without compromising one at the cost of another. Similarly, it protects women from discrimination in the labour market due to their reproductive roles.

This right is anchored in Article 43(1) (a) of the constitution which provides every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care. One cannot be said to enjoy this right if they don’t have the right to maternity leave. The two are complimentary, interrelated and intertwined.

A sound maternity protection promotes and guarantees the maternal and child health which in turn contributes to the attainment of millennium development goals (MDGs) 4 and 5. Globally this helps sustain women in employment and labour market. It’s no wonder First Lady Margaret Kenyatta’s Beyond Zero campaign seeks to reduce and or eradicate loss of lives during child delivery.

ILO conventions 3 and 103 (on maternity protection) require that a woman on maternity leave may not be dismissed from service (limited protection only). ILO Convention 183, however, extends this protection to period of pregnancy, period following a worker’s return to work (breast-feeding period) apart from maternity leave. The earlier conventions provided protection only to the already employed women workers (protection from dismissal). However, the current convention protects also those who seek employment (pregnant women and women of child bearing age).

A recent proposed Bill in Kenya seeks to allow parents of adopted children maternity and paternity leave so as to bond with the child. This category of parents was not catered for under the law in terms of such leave. The government, in recognition of the important role played by families in the society, is keen to have such legislation in place to protect the family unit.

The legal safeguards are there to ensure that there is social justice and that the right to family as guaranteed under Article 45 of the constitution is upheld. The family unit is very dear to all communities. It is a commitment that we all voted for in the Preamble to our Constitution.

In Bolton, parents can enjoy this right until the child’s fifth birthday in adoption cases, for five years after the child is first placed with the family for adoption (or until the child’s 18th birthday if that comes sooner). In the case of a child with a disability, up until the child’s 18th birthday (for the purposes of parental leave, a disabled child is one for whom disability living allowance has been awarded).

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