Parental Leave

Parental leave is?a workplace benefit that allows employees to take time off from work to care for their newborn or newly adopted children.

It typically includes maternity leave for mothers before and after childbirth, paternity leave for fathers, and adoption leave for parents adopting a child.

It can impact the company’s ability to recruit and retain employees.

Many employees look for companies that have supportive parental leave policies, and they may pursue other options if their current employer doesn’t provide them with enough leave. Ultimately, creating an inclusive parental policy shows employees that you respect their personal lives while encouraging them to grow at your company.

1.?????? Building inclusive Parental leave policy

1.1.?? Include different family structures

?? This involves situations like birth of a child, adoption, or placement from foster care.

?? This empowers all parents to be involved with their new children, even if they aren’t the primary caregiver or they didn’t personally give birth

1.2.?? Make it Accessible

?? A flexible parental leave policy shows that you’re focused on employees’ long-term future with your company.

?? Be clear that you want employees to take parental leave so they can avoid burnout and enjoy a?healthy work-life balance. Remember to provide fair career opportunities for new parents upon their return to work.

1.3.?? Develop A Transition Plan

?? Set guidelines for creating transition periods both before and after employees take leave.

?? Being prepared for the transition can provide employees with peace of mind while they’re on leave while also allowing for a seamless return to work.

1.4.?? Consider Offering Childcare Support

?? Childcare support can include credits to pay for daycare, in-office childcare support, or other dependent care assistance.

?? This can further assist with the transition back to work.

1.5.?? Provide Flexible Work Options

?? Consider offering flexible hours or a hybrid schedule to new parents to support their new family obligations.

?? Flexible work options?can help employees remain engaged at work while still having extra time and energy to dedicate to their families.

2.?????? Prioritizing Inclusive Parental Leave

?? By focusing on inclusion when crafting your parental leave plan, you show employees that you value?equity in the workplace.

?? When each employee can enjoy the benefits of parental leave as their families expand, you ensure that your company can be a part of their future.

3.?????? Common Issues Faced by Employers

3.1.?? Recruitment

?? While employers are not strictly prohibited from inquiring about pregnancy, family intentions, or childcare arrangements, it is crucial to tread carefully.

?? If an employer asks such questions and the candidate is subsequently unsuccessful, an employment tribunal might infer that the candidate’s failure was due to one of these reasons, supporting a discrimination claim.

3.2.?? Promotion

?? Refusing to consider pregnant employees for promotions, withholding information about promotion opportunities, or discouraging them from applying amounts to discriminatory treatments.

?? Employers must not discriminate against employees due to pregnancy or maternity leave when considering promotional opportunities.

3.3.?? Antenatal Appointments

?? Employees must not be dismissed or treated unfavourably when they request or take time off for antenatal care that they are entitled to.

?? While employers cannot reasonably refuse a request from an employee to take time off for antenatal care, they are entitled to request evidence and refuse time off for appointments if this information is not provided (apart from the first appointment).

?? Employers can also request employees to attend work before and/or after their appointments if this is within their normal working hours.

3.4.?? Poor performance during pregnancy

?? Employers should not take any action under their disciplinary or capability procedures against a pregnant employee where the reason for her poor performance is due to her pregnancy, for example, absences due to pregnancy-related illness.

?? However, if these issues arose before her pregnancy or if the reason for her poor performance is unrelated to her pregnancy, employers may address this in accordance with their standard process.

3.5.?? Redundancy

?? Employees who are within the protected period of their pregnancy have the right to be offered a suitable alternative vacancy, if one is available, before being made redundant.

?? This gives employees priority access to redeployment opportunities over other redundant employees.

?? This priority status also extends to those who have recently returned from maternity leave by providing an additional protected period.

?? If an employer fails to provide a priority employee with an appropriate alternative job, it could result in an automatic unfair dismissal claim.

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Note:

On matters relating to maternity leave, in Koskei v Brandlife Kenya Limited (Cause 315 of 2020) [2023] KEELRC 2647 (KLR) (19 October 2023), the Court held that issuing a notice to show cause letter to an employee on the same date the employee is proceeding on maternity leave does not demonstrate fairness.

4.?????? Maternity Leave

?? This is leave given to a female employee and lasts for three months.

?? A female employee who intends to take maternity leave must give their employer at least 7 days written notice of their intended leave.

?? A female employee on maternity leave is still entitled full pay during the three months leave and to their statutory annual leave.

?? Maternity leave cannot substitute annual leave.

?? Such an employee is also entitled to come back to the position they held before their maternity leave and under the same terms and conditions of employment.

?? If the employer consents to the extension of maternity leave or if immediately after maternity leave, a female employee proceeds on any other leave before resuming her duties, the three months maternity leave is deemed to expire on the last day of the extended leave.

5.?????? Paternity leave

?? Every male employee is entitled to two weeks maternity leave with full pay.

?? Unlike maternity leave, there is no notice period provided by the law, but the employee should give sufficient notice of his intended paternity leave.

?? After termination, a male employee who was not allowed paternity leave is entitled to seek compensation for the same, but only after proving

6.?????? Child Adoption leave

?? Provided for in;

§? Section 186 of the Children Act 2022

§? Employment (Amendment) Act 2021

§? Children Act (No. 8 of 2001) (section 157)

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?? Either a sole applicant or two spouses jointly may make an application for Adoption.

?? Applicants are required to either have attained the age of twenty-five (25) years or not be above the age of sixty-five (65) years.

?? Male or female employee is entitled to?1-month?pre-adoptive leave with full pay.

?? For men, this means that the pre-adoptive leave is longer than paternity leave.

?? An employee who takes pre-adoptive leave is entitled to the same rights as to the resumption of work as an employee who takes maternity leave under Section 29 (3) of the Employment Act 2007.

?? This means that such employee may resume the job or position they held prior to taking leave or to a suitable job on terms or conditions no less favourable than those applicable had the employee not taken pre-adoptive leave.

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