Pregnancy discrimination cases: Why some employers dread pregnancy
Pregnancy discrimination cases and worse, dismissal during pregnancy, all arise due to the attitude of either an employer or an employee, or both. Some employers dread pregnancy and will do everything possible to avoid hiring anyone they suspect is pregnant.
There are employers who are of the general view that pregnant employees are not effective in their duties, or as effective as their non-pregnant colleagues.
Consequently, incidents of discrimination at work due to pregnancy may arise. Such employers try to find fault with the woman, to justify her dismissal, demotion or relocation. It is not appropriate to generalise the abilities of pregnant staff; every woman’s circumstances are different, as is each individual’s capacity to carry a pregnancy and deliver results at work.
A pregnant woman faces several changes, some of which are hormonal. These changes may lead to mood swings, ill health and other feelings which may temporarily ‘slow’ her down, for instance fatigue. Furthermore, in some instances the pregnancy may be unplanned and thus disorientate a woman, especially if she is not married and was not ready for a child.
A good employer is sensitive to the realities of pregnancy and the fact that a pregnant employee may momentarily or occasionally feel ‘out of touch’. This does not mean she is inefficient or ineffective at such times. She is simply in ‘that’ moment.
If your supervisor fails to recognise that these are inevitable and natural occurrences, he or she may use your condition to settle old scores. At times supervisors may act ignorant while the truth is that their intentions are calculated and deliberate.
The law therefore protects pregnant women from harassment or discrimination, or dismissal during pregnancy. The spirit of the law in pregnancy discrimination cases however is not punitive but aims at bringing an understanding of nature where an employer refuses to understand it!
How genuine is your request for time off?
Some employees misuse pregnancy, and absent themselves from work unnecessarily. A good example is when someone whose ante-natal clinic lasts a few hours takes a whole day from work. There are of course some genuine cases where, for instance, clinic queues are long or the doctor diagnoses a condition that requires further tests, or rest is recommended by the doctor. Such cases are justifiable.
What worries some employers are constant requests for time off, without any proof of hospital attendance or doctor’s orders. Many employers get weary of ‘not-feeling-well’, ‘I can’t make it to work’ telephone calls ringing at the office at the start of a work day.
As a pregnant working woman, you can build trust and a genuine relationship with your employer (or supervisor) by ensuring you explain clearly the reason you must be out of office and where possible by supporting this with a doctor’s chit, hospital documents or receipts.
On the other hand an employer might deny leave to a genuinely deserving pregnant woman, simply because the supervisor does not believe she merits the sick off.
If you are facing a specific challenge or health condition, it is advisable to confide in the human resources manager to ensure you are not victimised or seen to be an unwilling or incapable worker. In most cases when your circumstances are known, the office establishment feels more relaxed and may even get helpful with your unique needs.
Suitability of the work to a pregnant woman
In some professions, once you are pregnant- you may no longer be suitable for that type of occupation, specifically those that may place the pregnant woman or her developing baby at risk. Some employers may resolve this through dismissal of the pregnant woman. The employer, however, has no right to dismiss or suspend an employee for this reason, but may relocate the pregnant staff to other jobs.
A discussion between the staff member and the employer, can avoid dismissal during pregnancy and find a mutually agreeable solution- since it would be in the interest of the pregnant staff to be given alternative duties.
It is advisable that employers and employees, enter into contracts that foresee this kind of scenario for these types of occupations. If an employee is relocated due to pregnancy, it is only right that she is consulted about the proposed new responsibilities, and that she returns to her normal station and duties after delivery. Pregnancy should not be an excuse to permanently ‘transfer’ staff.
Abuse of company time and assets
It is common for pregnant women with Internet access in their offices to spend some time browsing for materials on maternal health, pregnancy and baby care. Some go as far as printing the materials at the office. Men also seek to understand pregnancy and birth, hence they collect as much information as they can find for their wives.
Employers are concerned about company time and assets being put to personal use. However, most employers may find no reason to complain about a pregnant mum surfing pregnancy and baby care websites during lunch time or after hours. Pregnant employees therefore must be responsible so as to maintain a win-win situation at the office.
You may for instance let your supervisor know that you will stay on the system during non-work hours; and be candid that you will be looking at personal stuff. After all these are company assets you are using.
The last thing you should do is seem to be sneaking into sites or playing hide and seek computer screen tactics with your employer. Shutting down a screen or secretly switching screens whenever a supervisor passes by is a bad idea.
Safeguarding staff costs
Some employers fear that pregnancy brings with it additional costs to the company, especially paid maternity leave. The law requires employers to remunerate pregnant women as long as they are working. If the responsibilities cannot be delegated or re-allocated to someone else, the employer will have to hire someone to temporarily relieve the pregnant woman when she proceeds on maternity leave. These are real and inevitable costs.
Responsible employers take into account such costs when they hire women. The right to paid maternity leave is not simply a matter of law — it is humane.
On the other hand, it is equally responsible for the pregnant staff member to make the transition as smooth as possible. One way is by informing your employer as early as possible that you are pregnant. This gives your employer time to plan, to recruit if necessary, and to plan your work going forward.
You should also strive to organise your work in such a way that your departure for maternity will lead to an easy handover and effective take over of your responsibilities by your temp. In other words, though not mandatory, letting your employer know you are pregnant is responsible.
Personal prejudices
Some supervisors dislike pregnant women and will look for excuses to avoid, frustrate them or dismiss them during their pregnancy.
On the other hand, some pregnant women get moody and create “hell” in the workplace. Whether she is being supervised or she is the boss, such a staff member can be real trouble for normal operations. She may actually precipitate her dismissal during pregnancy.
If you find yourself getting moody and unpredictable, take deliberate steps to let your supervisors and your co-workers know that your temperaments are not intentional. Reassure them that you do not mean to make their work unbearable.
At such moody moments, find an alternative route to calm your feelings — for example a task of your work that requires more energy or attention; or anything else that can distract you from direct confrontation with others in the office.
A good employer orientates employees to understand their pregnant colleagues and vice-versa. If an employer notices that pregnancy in the workplace is causing other staff members stress, he or she should address the matter immediately. The employer may grant the pregnant staff member some hours off, for example.
If the staff member is irritated by a specific recurring issue, the employer should address that issue effectively.
Discrimination or dismissal of the pregnant employee is not a viable solution; it can lead to litigation and embarrassment. Get to the root cause of the irritation and resolve it. For example, a pregnant staff member may be affected by the smell of a type of perfume used by another employee, or a type of lunch served in the office. These are manageable issues that the employer should resolve.
Financial matters
During pregnancy and birth, financial needs of the pregnant woman escalate. It is normal —and in some cases even expected — that a staff member will seek financial help from the employer, mainly a loan or advance. Many employers are irritated by late requests for such aid, as it exerts pressure and turns the situation into an emergency. Plan early and make your employer aware that you will require extra finances.
Indicate which month such assistance will be needed. Discuss the amount, repayment duration and terms well in advance. Of course you can not rule out emergencies, but most employers understand that too.
On the other hand, an employer should be aware that such request are more likely than not to happen. Therefore it is prudent for an employer to expect and plan to issue this assistance. What some employers fear is that a staff member may inflate the request or take advantage of this opportunity to present additional but undisclosed needs for easy staff loans, disguised as maternity costs.
It is therefore advisable for a staff member to be as transparent as possible; for example, you may present to your employer the quotation from the hospital or the maternity package brochure that shows the costs.
Both the staff member and the employer should also ensure that all insurance benefit schemes in place are up to date.
It is strongly advised that the employer immediately notifies the insurer about the pregnancy of a staff member, and clarifies what benefits might be applicable.
It is not uncommon for a new mum to get distraught on learning that her workplace health insurance cover does not cater for this or that situation — too late!
Insurance companies are for example keen to learn the circumstances of expensive delivery procedures such as a CS, specialised doctors and personalised hospital accommodation. Some may reject a claim if, for instance, the CS is judged as having been elective and not an emergency.
All the above not-withstanding, it is important to always remember that the law protects pregnant employees from discrimination and dismissal. A good example is the Constitution and Laws of Kenya.
How Kenyan laws protect pregnant women
The laws of Kenya prohibit an employer to force an employee to declare her pregnancy status, unless in special circumstances such as work conditions that place the mother, baby or both at risk during the state of pregnancy (Section 5(3) of the Employment Act, 2007).
Here are constitutional and legislative clauses that work in favour of pregnant women in pregnancy discrimination cases:
Article 27 of the Kenya Constitution
(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).
Article 31 of the Constitution
Every person has the right to privacy, which includes the right not to have–
(c) information relating to their family or private affairs unnecessarily required or revealed; or
(d) the privacy of their communications infringed.
Section 5(3) of the Employment Act, 2007
“No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee—
(a) on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status;
(b) in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment.”
Section 29 of the Employment Act, 2007
Maternity leave:
(1) A female employee shall be entitled to three months maternity leave with full pay.
(2) On expiry of a female employee’s maternity leave as provided in subsections (1) and (3), the female employee shall have the right to return to the job which she held immediately prior to her maternity leave or to a reasonably suitable job on terms and conditions not less favourable than those which would have applied had she not been on maternity leave.
(3) Where—
(a) the maternity leave has been extended with the consent of the employer; or
(b) immediately on expiry of maternity leave before resuming her duties a female employee proceeds on sick leave or with the consent of the employer on annual leave; compassionate leave; or any other leave, the three months maternity leave under subsection (1) shall be deemed to expire on the last day of such extended leave.
(4) A female employee shall only be entitled to the rights mentioned in subsections (1), (2) and (3) if she gives not less than seven days notice in advance or a shorter period as may be reasonable in the circumstances of her intention to proceed on maternity leave on a specific date and to return to work thereafter.
(5) The notice referred to in subsection (4) shall be in writing.
(6) A female employee who seeks to exercise any of the rights mentioned in this section shall, if required by the employer, produce a certificate as to her medical condition from a qualified medical practitioner or midwife.
(7) No female employee shall forfeit her annual leave entitlement under section 28 on account of having taken her maternity leave.
(8) A male employee shall be entitled to two weeks paternity leave with full pay.
Termination of a pregnant employee
This is usually tricky, even where the reason for termination is not related to her pregnancy. An employer who wishes to enter into a mutual separation agreement with an employee is advised not to do so when the employee is pregnant or on maternity leave. The reason being that in the event of litigation, the benefit of doubt will likely favour the employee and the burden of proof that the termination or separation is not caused by the pregnancy will lie with the employer.
Internationally, Article 8 of the Maternity Protection Convention, 2000 (No. 183) provides grounds for persuasion that any action against a pregnant woman is litigable.
True pregnancy discrimination case from Kenya
Pregnancy discrimination cases involving unfair dismissal on grounds of pregnancy are real and do lead to detailed scrutiny by the Courts.
In the INDUSTRIAL COURT at Nairobi, Republic of Kenya CAUSE NUMBER 1227 OF 2011, the Claimant took A BANK to Court for TERMINATION OF EMPLOYMENT ON THE GROUND OF PREGNANCY.
The MD told her she was pregnantly expensive
The pleadings state that the Claimant, a Bank Manager, alleged to have been terminated from employment after four and a half years of service, because she was pregnant for a second time in that time frame.
Three years into her employment, she took four months of maternity leave. One and a half years later, she was pregnant again. She faced pregnancy complications that saw her taking a one month sick leave when she was five months pregnant.
Upon resuming duty, her Managing Director declared to her that employing her was an expensive affair! She was pregnant yet again, and it was anticipated that she would be proceeding on maternity leave. He let her know that her services were no longer required, and in fact that she had already been replaced!
To justify the dismissal, the MD stated that the Claimant had failed in the performance of her duties.To make matters worse, the MD informed her that her terminal dues would be applied to her outstanding mortgage obligation in the event she did not immediately find alternative means to liquidate the debt!
The Claimant cited several laws
The Claimant advanced that hers was a pregnancy discrimination case and prayed that the Court finds the Bank to have violated her rights under Section 5[3] of the Employment Act Number 11 of 2007. She also wanted the Court to find the Bank to be in violation of constitutional rights in particular: [i] Article 27 [5] and [ii] Article 41[1] of the Constitution of Kenya.
In addition, she cited Sections 45 and 46 [a] of the Employment Act and her contract of employment. She also wanted the Court to prohibit the Bank from withholding her terminal dues, citing Section 36 of the Employment Act.
The claimant made specific demands for compensation
She advanced that a clause in her contract was illegal and intended to blackmail and intimidate her. The Bank had placed a condition that she renounces her demands for compensation for unfair termination – and she reported this to the Court. She claimed the Bank was subjecting her to servitude, which was unconstitutional and obstruction to her right to access justice. She asked the Court to award her for the injury caused by the Bank’s breaches.
She wanted compensation for loss of three months’ maternity leave entitlement as an employee and loss of medical benefits associated with childbirth incurred. Further, she claimed general damages for discrimination on account of pregnancy and subjecting her to servitude and mental torture.
She wanted future loss of medical benefits to her and her two children paid. In addition, she demanded salary in lieu of notice and severance pay on account of her excellent service. The claimant wanted payment in lieu of leave days earned honoured too, alongside salary for days worked until dismissal. She also asked for twelve months’ salary in compensation for wrongful termination.
With respect to her loan from the Bank, she wanted the Bank to compensate her for loss of subsidized interest on the mortgage loan. To cap the claim, she asked the court to declare interest as payable on the total compensation at the rate of 20% per annum from the date of termination of service to the date of payment in full.
Finally, she placed the burden of all costs of the litigation on the Bank’s lap, and asked the Court to agree with her.
The Bank conceded some and denied other allegations
The Bank conceded that the Claimant was indeed employer by the Bank on the dates stated and her pay adjusted upwards on various dates as claimed. In addition, she was granted a loan by the Bank to purchase a residential house. The Bank conceded to having terminated her services, but denied that termination was unfair, or based on the reasons given by the Claimant.
The Bank argued that her contract of employment had a clause that allowed 3 months’ written notice of termination, or payment of 3 months’ salary in lieu of notice. Further, the Bank counter-claimed that her performance was below average and unsatisfactory. The Bank stated that she had been appraised and found wanting.
The Bank declared to the Court that the Claimant was fanciful in her claim and was attempting to extorting money from the Bank.
Finally, the Bank pressed on that the majority of the prayers sought, in particular the declarations with regard to the Constitution, were not within the jurisdiction of the Industrial Court, and that the Court could only grant the remedies under Section 15 of the Labour Institutions Act No. 12 of 2007.
The Bank cited Section 35 of the Employment Act 2007, which recognizes the validity of termination on notice, and argued that what parties agree in their contract of employment as a means of termination was sufficient reason under Section 43 of the Employment Act, unless notice is given to mask reasons that are prohibited under Section 46.
The Court’s ruling used local and international laws
The Court ruled that “there is absolutely no requirement for ladies who claim to have been discriminated against by their employers on the ground of pregnancy, to strictly proof that they were indeed, discriminated against on such ground.
The starting point is Section 5(6) of the Employment Act 2007, which states: ‘’In any proceedings where a contravention of Section 5 (3) is alleged, the employer shall bear the burden of proving that the discrimination did not take place as alleged, and the discriminatory act or omission is not based on any grounds specified in this Section.’’
“This law places the burden of proof on the employer, not the employee. This position has adequate support in Section 43 of the Act, which requires the employer to prove the reason for termination. Section 5(3) states that no employer shall discriminate directly, or indirectly, against an employee, or prospective employee, on the ground of pregnancy, among other grounds.”
“All the ladies are required to do, is establish a prima facie case, through direct evidence or statistical proof, that they have been discriminated against at employment, on account of their pregnancies. This responsibility of proof in discrimination claims is not peculiar to Kenya. It is part of International Labour and Human Rights standards. The ILO Maternity Protection Convention Number 183 [2000] requires that the pregnant employee is guaranteed maternity leave, and the right to return to the same or equivalent job at the end of her leave.”
“The Convention requires the employer to prove that the dismissal of the employee was not related to pregnancy discrimination, when the employee has laid the basis to show that she suffered the adverse employment decision based on such discrimination. The Universal Declaration of Human Rights proclaims that all men and women are entitled to enjoy their fundamental rights and freedoms, without discrimination. Other International Human Rights Instruments such as the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) provide an international legal framework for the realization of the rights of female employees in relation to their reproductive function.”
The Court’s award to the Claimant
In conclusion, on 31st July 2013, Judge James Rika delivered the Court’s verdict. The Court returned a ruling in favour of the Claimant and ordered the Bank to pay her coalesced damages at Kshs. 3,000,000, salary in lieu of notice; service/gratuity pay; outstanding leave; and 3 days worked before termination, all totaling Kshs. 1,473,006.
The total payout to the unfairly dismissed pregnant mum was Kshs. 4.47 million.
The Bank was also ordered to pay litigation costs to the Claimant and to top up the claim by paying interest on the principal sum and on costs at 14% per annum from the date of the delivery of the award until the date payment to the Claimant would be completed.
References and excerpts are adopted from the FULL CASE REPORT: CAUSE 1227 of 2011 at kenyalaw.org
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