'My contract bans pregnancy': Why your boss can’t police your body
The Employment Act promotes equality and prohibits discrimination at the workplace.
What you need to know:
- Susanna's contract bans pregnancy and maternity leave—violating Kenya's Constitution and Employment Act protections.
- Kenyan law protects women from workplace discrimination, including illegal clauses banning pregnancy or denying maternity leave.
Dear Vivian,
I have recently received an appointment letter and a contract to work at a petrol station. Even though I am glad, I am worried about clause 8 in the contract requiring me not to get pregnant for the duration of the two-year contract. It further states that the company will not be liable for any maternity leave. Is this legal? Please, advise.
Susanna Wanjiku,
Nakuru
Dear Susanna,
Starting a new job involves a lot of excitement and a whole lot of paperwork. It is, however, important to note that an employment contract is only as strong as the clauses it contains. Without clear and well-structured clauses, both employers and employees can get misunderstandings, disputes or even legal problems. Therefore, taking time to seek legal advice on uncertain clauses is important.
Clause eight in your contract amounts to a discriminatory clause. Discrimination refers to treating individuals differently, or less favourably, than others based on characteristics like race, gender, religion, or disability. Discriminatory clauses are terms that unfairly target or disadvantage individuals based on the previously mentioned protected characteristics.
The Constitution, the supreme law of Kenya, under Article 27(4) prohibits discrimination 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.
Further, the Employment Act promotes equality and prohibits discrimination at the workplace. It provides that no employer shall discriminate directly or indirectly against an employee or prospective employee or harass an employee or prospective employee on the grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, marital status or HIV status.
The above legal sections cover recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment. More specifically, the Employment Act provides that female employees are entitled to three months (90 calendar days) of maternity leave. This entitlement applies to all female employees who are in formal employment and have notified their employer in advance of their pregnancy and intended leave period.
This leave is designed to provide mothers with adequate time to recover from childbirth and bond with their newborns. Employers are required to grant this leave and ensure the employee can return to her previous position or a similar role with equivalent terms and conditions upon her return. Maternity leave is fully paid. Employers are prohibited from deducting an employee’s wages or altering the terms of her employment during this period.
With this understanding, I propose you have a discussion with your employer on these rights. It will be prudent to agree on this before signing the contract. Since your contract has flagged some discriminatory clauses, it will be prudent to have an employment lawyer review the entire contract to best advice.
Vivian
The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).
