My friend Mary was terminated from employment the other day after applying for her maternity leave. The basis for her dismissal was her pregnancy. Mary turned out to be a liability rather than an asset to the organization. She came to me disgruntled and irked. The termination by the company was outrightly unfair, baseless and discriminative.

We are all entitled to human rights which cannot be taken away from us.  Under the Constitution, no one should be discriminated upon on the basis of sex or pregnancy. The law that defines the rights and responsibilities in the employment relationship in Kenya is the Employment Act.

Section 5(3) of that Act states that:

no employer shall discriminate directly, or indirectly, against an employee, or prospective employee, on the ground of pregnancy, among other grounds.

There is 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 grounds. This is under Section 5(6) of the Employment Act.

The 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.

All a lady employee that has been discriminated upon needs to do is present facts or statistical proof that they have been discriminated against at employment, on account of their pregnancies. Courts have stated that the employee needs to:-

• Establish she belongs to a protected class which in this case, she was an employee protected under the Kenyan laws.
• Demonstrate she qualified for the job that she lost.
• Show she suffered adverse employment action, directly as a result of her pregnancy.
• Lastly, the employee must as a minimum, establish that there is a nexus between the adverse employment decision, and her pregnancy.

Once the employee has presented the case with the facts and evidence, the burden shifts to the employer. The employer is required to show a legitimate explanation for termination. The employer must articulate clear, specific, and non-discriminatory reason for termination.

The employee’s duty is to provide evidence, which would permit the Court to conclude the explanation proffered by the employer, is baseless. Pretext can be established by showing that the asserted neutral basis for termination was so ridden with error, that the employer would not honestly have relied on it.

Female employees are not only protected in Kenya from discrimination but also worldwide. The discrimination is under the International Labour and Human Rights standards. The International Labour Organization Maternity Protection Convention Number 183 [2000] requires that a pregnant employee is:-

• guaranteed maternity leave, and the right to return to the same or equivalent job at the end of her leave.
• the employer to prove that the dismissal of the employee was not related to pregnancy discrimination

The Universal Declaration of Human Rights proclaims that all men and women are entitled to enjoy their fundamental rights and freedoms. 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 labour standards in this area are aimed at achieving among other objectives, a healthy work-life balance for the mother.

The law recognizes that some employers are likely to discriminate against pregnant employees because of:

• prejudices against working women and mothers;
• employer’s fear of loss of productivity during the female employee’s absence;
• employer’s insufficient resources to support temporary employees during such absence;
• the belief that on return from maternity leave, the female employee will require too many accommodations from the employer, as she engages in baby care.

It is not surprising that the Managing Director of the organization that had employed Mary felt that Mary had become an expensive employee.  The duty to prove that there was no discrimination on account of pregnancy, shifts to the Company If Mary decides to sue her former employer.

Ngugi Mburu is a Commercial and Litigation lawyer with a reputable Law Firm in Nairobi. Email: [email protected] for any enquiries or clarifications.