We are negotiating a Collective Bargaining Agreement with a Trade Union and would like to get your opinion on the following issues of labour law. Does the law limit the terms of paid maternity leave the employer is bound to give the employee during subsistence of the employment relationship? Within what span of time is an employee entitled to a paid maternity leave after the date of engagement or after completing the last maternity leave? Is an employee entitled to a paid maternity leave within a year after she took the last leave or after the engagement? Can the employee who is still on maternity leave take annual leave?
Section 33(8) of the Employment and Labour Relations Act [Cap. 366 R.E 2019] limits the terms of paid maternity leaves which the employee is entitled to take. An employee is entitled to only four terms of paid maternity leave irrespective of how many years she has consecutively worked for the same employer and the number of children she has given birth to. However, this limitation of four terms is only for paid maternity leave. After the employee has exhausted the fourth term of paid maternity leave, the employer is still obliged to grant the female employee maternity leave though the fifth term and the subsequent terms shall be unpaid.
By virtue of section 30(1)(b)(ii) of the Employment and Labour Relations Act, maternity leave cycle is a period of 36 months from the date of engagement or 36 months from the date the last leave was taken. An employee is entitled to a paid maternity leave after expiration of 36 months from the date of engagement by the employer or from the date the employee completed her last maternity leave. Where the employee’s child dies within a year after birth and she conceives, she will be entitled to another paid maternity leave though 36 months have not expired. The period of 3 years is a leave cycle for paid maternity leave. An employee can take maternity leave before the expiration of 3 years from the date of engagement with the employer or from the date she completed her last maternity leave provided that maternity leave taken before the expiration of 36 months from the date of employment or after the last leave shall be unpaid.
An employee who is on maternity leave is entitled to annual leave if it is due to her. It is contrary to section 31(5) of the Employment and Labour Relations Act for the employer to treat maternity leave as covering the annual leave and deny the employee her right to annual leave on grounds that the employee has been on a long maternity leave. Maternity leave and annual are two distinct leave rights with distinct leave cycles.