Dr. Magare Gikenyi’s attempt to secure a minimum of three months of paid leave for men upon the birth of a child has been unsuccessful.
The Employment and Labour Relations Court (ELRC) has ruled against the surgeon’s plea for equal paternity leave days for men and women.
Justice Stella Rutto, while dismissing Dr. Gikenyi’s arguments, justified the decision by stating that granting men longer paternity leave would impose substantial costs on employers.
According to Justice Rutto, although the Constitution recognizes gender equality in the workplace, the Employment Act’s provision of extended leave for women acknowledges the biological differences between men and women during the prenatal and postnatal stages.
The judge emphasized that while women carry the pregnancy, undergo childbirth, and subsequently nurse the newborn, men primarily play a supportive role during this process.
Justice Rutto stated, “I find no fault in Section 29 of the Employment Act, which assigns different durations of parental leave to female and male employees post-childbirth.
Genetic and hormonal factors result in inherent differences between males and females. Thus, male and female employees do not experience the same biological processes during both the prenatal and postnatal stages.”
Several countries, including Lithuania, Japan, Estonia, Iceland, South Korea, Spain, and Sweden, offer extensive paternity leave for men.
Lithuania provides fathers with 30 days of paternity leave, paid at 77.58% of their regular earnings, while Japan offers four weeks with 80% salary coverage for fathers.
However, in Japan, some men fear negative career consequences, such as missed promotion opportunities or being assigned less responsible roles, if they take time off for their families.
Justice Stella Rutto dismissed objections raised by the Ministry of Labour and the Attorney General, who argued that the labor court lacked the authority to decide on Dr. Gikenyi’s case since he was neither their employee nor a union official.
In Kenya, men are currently entitled to 14 days of paternity leave. In this case, the surgeon sought a declaration from the court that Section 29 of the Employment Act discriminates based on gender in the workplace.
The Act permits women to take up to three months of fully paid maternity leave, while men have a designated 14-day period of paid paternity leave.
Dr. Gikenyi contended that the law should ensure that employed men receive the same number of leave days as women during maternity breaks.
He argued that Section 29 of the Employment Act violated the principle of equal treatment for Kenyan male parents, as guaranteed by other sections of the Kenyan Constitution.
“There is clear discrimination regarding the duration of leave given to mothers and fathers of the same child. The differentiation or discrimination in the duration of maternal and paternal leaves is unjust,” stated Dr. Gikenyi.
He further pointed out that the disputed section of the Labor Act provided three months of maternity leave for mothers with full salary and allowances, a provision he believed violated Section 27 of the same Act, which prohibits any form of discrimination based on sex, color, language, religion, nationality, ethnicity, pregnancy, or other opinions.
“In these circumstances, this radical, irrational, and unlawful discriminatory policy imposed by the respondents on defenseless Kenyans must be declared illegal, null and void, and struck down,” he urged.
