PATERNITY LEAVE UNDER EMPLOYMENT ACT OF KENYA

Introduction
The provisions of the Employment Act on Paternity leave are evidently not clear in that they do not state when the leave is taken and on what basis. In the Act, the minister of labour is vested with the powers to make rules and regulations on any matter regulated by the Act. Matters touching on paternity leave are no exception. However, so far no rules or regulations have been passed.

The Employment Act also grants employer the indulgence contract with employees or their representatives on rights and duties of employee than otherwise provided for in the Act. The only condition is that for such the contract to stand, if inconsistent with the Act, it must be more favourable to the employee than the Acts provisions on the matter.

Also, the fact that the provisions on paternity leave are included on the provisions of maternity leave may be a pointer to their interpretation in case of ambiguity. If anything, if the law is strict on the female employee, the one expecting the baby, it is unreasonable to even think that the Parliament intended that it be lenient on male employees relying on the same expectancy.

Here, we consider the 17 frequently asked questions on right to paternity leave.

1. What are the rights to paternity leave?

The provisions on paternity leave under the Employment Act allow an eligible employee to take fully paid paternity leave.

The provisions of the Employment Act on Paternity leave are evidently not clear in that they do not state when the leave is to be taken and on what basis. The relevant section reads:

“A male employer (sic) shall be entitled to two weeks paternity leave with full pay.
The bit about ‘employer’ is a clerical error and clearly it was intended to state ‘male employees’.

2. Who qualifies for paternity leave?

Answer: A male full ‘employee’

To qualify for paternity leave, a person must be a male person and an employee. That is to say, ‘be employed for a salary or wages’, as employees are defined in the Act. However, a casual employee is not included as the Act seems to define an ‘employee’ and ‘casual employee’ separately. In our opinion, the right to paternity leave is available to full employees only and does not cover casual employees.
Logically, paternity and by extension a leave based on claims of paternity can only accrue to:

• the biological father of a baby
• husband or partner to the baby’s mother.

We are of the opinion that for the purpose, a partner would be someone who lives with the mother of the baby in an enduring family relationship but is not an immediate relative. This seems to us necessary because it will be hard for an employee to prove that he is the biological father.

3. Which employees are excluded from paternity leave?

Answer: Casual employees.

As opined above, the definition of ‘employee’ in the Employment Act does not include a ‘casual employee’. Given that only a ‘male employee’ is entitled to paternity right ‘casuals’ are thus excluded.

4. Is an employee entitled to time off to attend antenatal care appointments?

Under the statutory right to paternity leave, male employees are not entitled to time off to accompany their partner at antenatal appointments (although pregnant employees would as a matter of reasonability have the right to time off).

5. Can an employer create stipulation on paternity leave?

Answer: Yes. This also goes to answer, most especially your question three.

The Act allows the employer and employee to contract on terms of employment provided the terms between them are more favourable to the employee than the terms provided in the Act. In the present case, such contract would be justified in that it would aim to give effect to the right of paternity leave which is otherwise ambiguous.

However, employers cannot use the provision to contract employees out of their right to paternity leave as the law is couched in mandatory terms. Thus the answer to the question is that the employer can have its own paternity leave provisions on the contract of employment provided they do not infringe the right or paternity leave as provided for under the Act. If it infringes, the employee is entitled to choose the right under the scheme or the statutory one.

Thus, although not expressly provided for in the Act, the employer may restrict the right to paternity leave. But such restriction must be favourable to the employee and only requiring what a reasonable man would infer from the law otherwise they would amount to illegal contract and doomed to unenforceability.

6. How much paternity leave can an employee take?

Eligible employees are entitled to take either two consecutive weeks’ paternity leave. It can not be taken as odd days or as two separate weeks.
Employees can take only one period of leave even if more than one baby is born, i.e. twins or triplets, as the result of the same pregnancy.

7. When can an employee start his leave?

This is not provided for in the Act. However, a female employee is required to give seven or any other reasonable notice before proceeding to the leave. We find no reason why the male employee should not also be so required. But we think the employer and the employee can agree that the same be taken latter or earlier.

However, for prudence sake, paternity leave should, as far as possible, be restricted to after the given birth. If anything, that is the time when documentary evidence of fatherhood is forthcoming e.g. birth notification and baby cards.

8. Will an employee qualify for leave if his baby is stillborn or dies following birth?

The law does not stipulate on this. We opine that a qualifying employee should be entitled to paid paternity leave if his baby is stillborn after a reasonable time of pregnancy. This is because such births are usually traumatic to the couple and the employee may need, just as is the case in a live birth, time to take care of the mother.

However, not all still births can qualify. Some jurisdictions have put the period at twenty-four weeks of pregnancy for the male partner to qualify in case of a still birth. In our case, are of the opinion that reasonable time would do-that is such time as reasonable depending on the circumstances of the case.

Further, if the baby is born alive at any point in the pregnancy but dies later, it seems the employee should be entitled to paid paternity leave in the usual way.

9. Can the employer restrict the leave to be taken within a certain period?

The law does not limit the time on which the leave may start. However, we are of the opinion that the employer may provide for reasonable time in which it may be taken depending on the prevailing circumstances.

10. When must an employee tell his employer that he is going to take paternity leave?

No restrictions on this. But it seems the employer may within the law impose a reasonable restriction in the interest of smooth flow of its business i.e. as soon as is reasonably practicable after birth depending on the prevailing circumstances.
11. What does an employee have to inform the employer to be entitled to paternity leave under the Act?

If the requirements on maternity leave are anything to go by, a male employee wishing to exercise its right to paternity leave should if required by the employer, produce a certificate of the medical condition of his wife or partner and prove that he is the father of the child and/or the partner or husband of the mother.

12. What protection is there against detriment for taking paternity leave?

An employee is protected against being subjected to detriment by any act or deliberate failure to act by their employer because he:

• took paternity leave or
• sought to take paternity leave

Detriment can cover a wide range of forms of unfair treatment, such as denial of promotion, facilities or training opportunities which the employer would otherwise have offered or made available.

Employees who suffer unfair treatment at work for the above reasons may make a complaint to the authorities.

13. Are the 14 days inclusive or exclusive of public or weekly holidays or not?

Answer: Inclusive

In respect of annual leave, the Act is specific that the days that shall count are ‘working days’. However, in the provision on paternity leave, the law talks of ‘two weeks paternity leave’. Given that it does not specify that the two weeks compose of working days, the literal meaning is that the leave days are inclusive of weekly holidays and public holidays, i.e., calendar weeks.

16. Does the employer have the right to deny such paternity leave if requisitioned latter than time of partner’s delivery?

Answer: Yes.

However, it seems the employer must reserve the right as to the requirement with regard to notification of birth. Bust the same should not be unreasonable or unduly unfavourable to the rights of the employee.

17. Can the employee insist on claiming wages in monetary terms instead of the paternity leave?

Answer: No.

It would seem this touches on why the leave is granted in the first place. The father is given the leave to be with the new-born and take care of his responsibilities as a father. However, the law merely states that the employee is entitled and not that it shall go for the leave.

In my opinion, the employer cannot contract the employee to accept cash in place of the absence. The same would likely fail to pass the test of being favourable to the employee. For example, it may amount to acting against the interests of the employee.

However, if the employee opts for cash, and the employer is agreeable, we see no reason why the cash will not serve the purpose. But the employee cannot insist on the cash i.e. force the employer to agree to pay cash and forfeit the leave. It is a matter of discretion of the employer and if it wants the employee to proceed on leave, the employee has no choice. Just same way the employer cannot compel the employee to forfeit the leave for cash when he wants to proceed for the same.