Sections 100 to 102 of the Employment Act (Chapter 373) deal with pregnancy and maternity. They contain a real protection against dismissal, a defined period of leave, and a nursing entitlement that is often unknown.
Section 100(1) — what the employer must do
(a) shall agree, if the employee so desires, to the termination of the employment without penalty;
(b) shall not, without the consent of the employee, terminate the employment on the grounds of or arising out of the pregnancy — except where the employee has been employed for less than 90 days; and
(c) shall, where the employment is not terminated, grant maternity leave where the employee has been employed by that employer for:
— not less than 108 days within the preceding 12 months; or
— not less than 90 days within the preceding six months.
A pregnant employee cannot be dismissed on grounds of, or arising out of, the pregnancy without her consent, once she has been employed for 90 days or more. And under section 100(2), during the period of maternity leave the employment shall not be terminated except by mutual consent — a wider protection still, because it is not limited to pregnancy-related grounds.
Paragraph (a) works the other way: if the employee wants to end the employment, the employer must agree, and without penalty — so no forfeiture, no charge, and no adverse treatment of what is owed.
Protection from dismissal under (b) turns on 90 days’ employment. Entitlement to leave under (c) turns on a different test — 108 days in 12 months, or 90 days in six months, immediately preceding the grant of leave. An employee may be protected from dismissal without yet qualifying for leave.
Section 100(3) and (4) — the length of the leave
| Period | Length | Provision |
|---|---|---|
| Before confinement | The period necessary for hospitalisation prior to confinement | s 100(3)(a) |
| After confinement | Six weeks | s 100(3)(b) |
| Additional, where sickness following confinement makes the employee unable to work | Up to four further weeks | s 100(4) |
The pre-confinement period is not a fixed number of weeks — it is the period necessary for hospitalisation, which will be evidenced medically.
Section 100(5) — counted as work, but unpaid
(a) be deemed to be a period of work under the contract of service; and
(b) be without wages — except where the employee elects to convert recreation or sick leave credits into paid maternity leave.
Paragraph (a) matters a great deal even though the leave is unpaid. Because the period is deemed to be work under the contract:
- the contract continues, and cannot be terminated except by mutual consent (s 100(2));
- service continues to run for the purposes of notice under section 34(4); and
- the employee’s right to employer housing continues — section 126(2) preserves it through periods when work is not performed, including illness and leave.
For recreation leave, maternity leave does not break continuity of service — the service either side is joined up — but the period of the maternity leave itself is not taken into account in computing the amount of recreation leave due, or the qualifying period under section 61(4).
The election in paragraph (b) is the employee’s: recreation leave credits, or accumulated sick leave (up to 18 days plus the current year’s six), may be converted into paid maternity leave. Ask for the balances in writing before deciding.
Section 101 — nursing breaks, paid
(1) Where an employee is nursing her child she shall, for that purpose, be allowed periods of absence from duty.
(2) Those periods shall be (a) not less than one half hour twice daily during normal working hours; and (b) counted as working hours for the purposes of calculating wages.
(3) An employer shall not make any deductions from the wages of an employee for those periods.
An hour a day, in two blocks at least, paid. Subsection (2)(a) sets a floor — “not less than” — so longer or more frequent breaks may be agreed. Subsection (3) puts the point beyond argument: no deduction. A deduction made anyway is unlawful under section 88 and an offence under section 96(c).
Section 102 — resuming duty early
(1) Notwithstanding the grant of maternity leave, a female employee may, if she so desires, resume her employment at any time during the period of the maternity leave.
(2) Before resuming, the employee shall obtain a certificate as to her medical fitness.
(3) The examination shall be made by a medical practitioner or a nurse registered under the Medical Registration Act.
The right to return early belongs to the employee. The employer cannot insist on the full period being taken, nor refuse a return supported by a fitness certificate. Note that a registered nurse may give the certificate — not only a medical practitioner — which matters where practitioners are not available locally.
Related provisions
- Section 97 — discrimination on account of sex, and equal pay, are offences.
- Section 127 — an offence to knowingly require an employee to perform work for which she is not physically fit (fine up to K500.00).
- Section 130 — arrangements for treatment or hospitalisation on request, and transport where desired.
- Section 138 — an offence to refuse information reasonably required by an employee, or to penalise her for asking.
- Section 11(4) — a contract term less favourable than these provisions is void to that extent.
Practical steps
- Notify the employer in writing and keep a copy — section 100(1) is triggered by notification or awareness.
- Check your qualifying service — 90 days for dismissal protection; 108 days in 12 months or 90 days in six months for leave.
- Ask for the leave in writing, with the expected dates.
- Ask for your leave balances before electing to convert credits into paid leave.
- Confirm your housing continues under section 126(2).
- If you want to return early, obtain the fitness certificate from a practitioner or registered nurse.
- Claim the nursing breaks — at least half an hour twice daily, paid, with no deduction.
- If you are dismissed because of the pregnancy, report it to a labour officer at once and get advice from the Public Solicitor or a firm from the law firms directory.
Sources
- Employment Act (Chapter 373) — ss 11, 34, 60, 61, 65, 88, 96, 97, 100–102, 126, 127, 130, 138
- Medical Registration Act — PacLII 1986 Revised Edition
- Constitution — s 55
- Industrial Relations Act — PacLII 1986 Revised Edition
Before relying on anything here, read the current text of the Employment Act (Chapter 373) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.