My employer accused me of having an abortion after my miscarriage
It is normal to worry after a miscarriage.
What you need to know:
- For data privacy violation, you can file a complaint with the Office of the Data Protection Commissioner against the medical facility or insurer.
- On workplace discrimination, report the employer’s actions to the Employment and Labour Relations Court for redress.
- For breach of medical confidentiality, submit a complaint to the Kenya Medical Practitioners and Dentists Council.
Dear Vivian,
I suffered a miscarriage and used my employer-provided health insurance to cover treatment for the complications. Shortly after, I received a warning letter from the HR, accusing me of using the insurance for an abortion, followed by a staff meeting where, although my name wasn’t mentioned, the details made it clear the comments were about me. Please advise.
Hope,
Makindu
Dear Hope,
Your situation highlights serious concerns about the violation of your right to privacy, medical confidentiality, and protection against discrimination, all of which are safeguarded under Kenyan law.
First, the Constitution guarantees every individual the right to privacy, which includes the protection of personal information such as medical records. In your case, the employer’s actions may have infringed this right. Kenyan courts have consistently emphasised the importance of safeguarding private information, recognising that any intrusion must meet strict legal standards.
Beyond constitutional protections, Kenyan law imposes clear obligations on healthcare providers and insurers to maintain the confidentiality of medical records. The Health Act requires that personal health information be kept private unless the patient consents to its disclosure or the law mandates it. Similarly, the Data Protection Act treats health data as sensitive personal information and mandates that it be handled lawfully, fairly, and transparently. If either the medical facility or the insurer shared your medical details with your employer without your explicit consent, they likely violated these legal requirements.
The employer’s conduct also raises concerns about workplace discrimination. The Employment Act prohibits discrimination against employees based on health status, pregnancy, or gender. Furthermore, publicly raising the issue in a staff meeting, even indirectly, could be seen as fostering a hostile work environment, further compounding the harm caused.
In considering who may be legally liable, responsibility could fall on multiple parties. If the medical facility or insurer disclosed your personal health information without your consent, they breached their legal duty of confidentiality. On the other hand, your employer could be held accountable for acting on private medical information in a way that violated your right to privacy and potentially amounted to discrimination.
To seek legal redress, you have several options. You can file a complaint with the Office of the Data Protection Commissioner if you believe your data privacy rights were violated by the medical facility or insurer. If you feel the employer’s actions constituted workplace discrimination or breached your right to privacy, you can lodge a complaint with the Employment and Labour Relations Court. Additionally, if the breach originated from the healthcare provider, the Kenya Medical Practitioners and Dentists Council offers a channel for complaints regarding violations of patient confidentiality. You may also consider pursuing a civil suit for damages, especially if the employer’s actions caused reputational harm or emotional distress.
Vivian
The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).
