I've been fired for taking time off due to intense menstrual cramps

Dear Vivian,

I work as a secretary in a car yard. Recently, I had to take some time off work because of intense menstrual cramps. Following my doctor’s advice, I called in to inform my supervisor and the HR department. They denied me menstrual leave, hence I received a sick sheet from my doctor to substantiate the reasons for my absence. Upon my return, I was handed a dismissal letter alleging that I had absconded duty. The director went on to say that menstrual cramps were not a valid reason for my absence, stating that I was not the only woman who experiences such discomfort. Please, advise.

Tabitha Siafu,

Mombasa

Dear Tabitha,

Kenya has yet to adopt menstrual leave as legally accepted leave. However, various institutions have developed menstrual leave policies. This has been a topic of debate and controversy, though.

Opponents argue that it may discourage employers from hiring women, increase gender-based discrimination and infringe privacy rights.

Also read: Solution for menstrual cramps: Yoga poses that relieve pain

While this particular leave has yet to be recognised, the Constitution not only safeguards your right to fair labour practices but also emphasises the principle of equal treatment and non-discrimination in all aspects of employment.

This constitutional provision underscores the obligation of employers to uphold fairness and equality in their treatment of employees, regardless of gender or health status.

Also read: Why Kenya needs a menstrual leave policy

Therefore, any action taken by your employer that contravenes these principles constitutes a violation of your constitutional rights.

Furthermore, the Employment Act outlines the grounds upon which an employer may terminate an employee's contract, emphasising the importance of valid reasons and due process.

Also read: Bloody pain: Menses are normal, period agony is not

In your case, the allegation of absconding duty because of menstrual cramps fails to meet the threshold of a valid reason for termination, as it disregards the legitimate need for sick leave to address a health condition.

In addition, the derogatory comment made by the director highlights a culture of gender insensitivity and discrimination within your workplace.

Also read: Painful periods affected our productivity at work

Such remarks not only undermine the legitimacy of women's health issues but also perpetuate harmful stereotypes and stigma, creating a hostile work environment.

In light of these legal considerations, it is evident that your dismissal is not only unjust but also unlawful. You have the right to seek redress and remedy for the unfair treatment you have endured.

Also read: I always suffer terrible cramps

Engaging the services of a reputable labour lawyer or human rights organisation specialising in gender discrimination cases is crucial in navigating the legal process effectively.

Consider the option of filing for a civil lawsuit against your employer for damages.

Also read: Menstrual struggles girls and women living with disability face

In conclusion, it is imperative to stand firm in asserting your rights and challenging discriminatory practices in the workplace.

By taking proactive steps to seek redress and holding your employer accountable, you not only seek justice for yourself but also contribute to creating a more equitable and inclusive work environment for all employees.

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).