For years, employers have been told to make room for working parents. But what happens when flexibility collides with the demands of a job that requires employees to be physically present?
A court ruling has brought that tension into sharp focus, pitting a mother’s childcare responsibilities against an employer’s expectations that maternity leave should end with a full return to work.
The case also exposes a more uncomfortable question for workplaces: whether the practical challenges of motherhood are being accommodated — or gradually turning into a reason to view women as a greater business risk.
At the centre of the labour case was an editor for a global Christian media network, Good News Production International, who sued her employer over a work-from-home dispute.
The editor, codenamed Ms GR, said she was forced to resign after her employer declined to let her work from home while caring for her infant.
However, the Employment and Labour Relations Court in Nairobi rejected her claim that she was pushed out after declining to resume physical work while caring for her infant, but awarded her three months’ withheld salary.
“She has not established that she was constructively, unfairly or unlawfully dismissed by the respondent. She appears to have misapprehended her work-life balance, and blamed the respondent for her own shortcomings. Her prayers surrounding dismissal, are unfounded, and are declined,” the court said in the case that concerned motherhood, childcare and the limits of workplace flexibility.
And since the organisation was compelled to outsource Ms GR’s animation role to a male employee, the court said her “behaviour was of a kind that encourages discrimination against female employees, when it comes to recruitment in the job market”.
“Some employers are led to believe that female employees, are an economic burden and have lower productivity, considering their potential for prolonged days of maternity leave; the cost of hiring relievers; and the risk of incessant absence after maternity leave, occasioned by babycare,” said the court.
Ms GR joined the organisation in September 2015, earning Sh25,000 monthly. The organisation facilitated her attendance of animation classes, where she honed her editorial skills.
Maternity leave and ultimatum
She proceeded on a three-month maternity leave on September 30, 2019, delivered on October 1 and was expected back on January 20, 2020. The employer granted her a 12-day extension, allowing her to resume on February 3.
In February, she had been assigned an animation project involving other staff. She continued working remotely under government work-from-home measures during the Covid-19 period.
On April 20, 2020, her supervisor instructed her to return to the office to work on the animation assignment. Ms GR said she had an infant, could not find a housemaid because movement restrictions had disrupted domestic work arrangements, and requested a MacBook laptop to work from home.
Instead, she said, the employer gave her an ultimatum: return to work or take unpaid leave. She declined unpaid leave, saying she remained ready to work virtually. Her assignments stopped, her salary was withheld, and she resigned, saying she had been cornered.
She filed the claim in court in December 2020, seeking declarations of unlawful dismissal, Sh75,000 withheld salary, up to Sh300,000 compensation, damages, costs and interest.
“The respondent treated the claimant fairly at every turn. Even when she resisted working, many months after her maternity leave was over, she was offered the option of taking unpaid leave until she felt she was ready to resume work,” the court ruled.
The company’s witness, a coordinator, said staff worked remotely according to their duties, but editors and other production workers had to attend the office. The witness said Ms GR was not required to remain there all day.
Managers sent reminders and asked her on April 23 to prepare a workplan. She did not provide it. On April 28, she said she could not prepare one while working virtually and would do so when normal operations resumed.
The coordinator said he explained that the project was time-bound and that the office had few workers. Ms GR nevertheless declined to report, citing childcare and the absence of a housemaid.
She was offered unpaid leave until she was ready, while the organisation outsourced the assignment to a temporary worker named Nicholas.
In its judgement, the court said the work was part of the editing process and was not unfamiliar territory. The court rejected her claim that another new mother had been allowed to work virtually because she provided no evidence.
The court distinguished maternity rights from an indefinite right to remain away from work. Section 29 of the Employment Act gives a woman the right to return to her previous job or a reasonably suitable one after maternity leave. The court said that right carries a duty to resume work fully.
“A reasonable employee would fully resume duty with a sense of urgency, aware that her long absence may have created a gap in the overall productivity of her employer’s business. The claimant would have been expected to make up for the lost time, but opted to grind a working relationship with the Respondent, to a screeching halt,” the court said.
It said the organisation had “bent backwards to rescue the employer-employee relationship” by extending the maternity leave and offering unpaid leave. The court found that she remained employed until her resignation took effect on July 31, 2020. It ordered payment of Sh75,000 for May, June and July, but dismissed her claims for unfair termination, constructive dismissal and compensation.
It also allowed the employer’s counterclaim of Sh11,571 after Ms GR admitted taking 12 annual-leave days in advance.
The ruling also discussed gender and workplace stereotypes noting that outsourcing Ms GR’s role to a male worker could reinforce perceptions that women are less stable or more costly employees.
The court described this as “normative discrimination”, saying such perceptions can restrict women’s equality of opportunity at recruitment.
“A perception, perhaps a wrong perception, is created, that males are more productive and stable employees, less economically burdensome, in comparison to the female gender. Female employees are deemed to be disruptive to business productivity,” said the court.
