Kayode Ibukunoluwa-Micah's Blog

The rider to this article came from a reader of this blog who raised an issue bothering on the non-payment of maternity leave entitlement to his wife who had spent less than one year of continuous service with an organization. Also, because of other issues coming out of the implementation of maternity leave I have taken the liberty to shed some light on the legal requirements, processes and the execution of maternity leave.

The scope of this article shall be limited to maternity leave in contrast with paternity leave (where men to whom a child had been delivered are given time off to care for their wives and the newly born child as recently legislated in the Lagos State Civil Service and practiced in many countries of the world , sometimes called SHARED PARENTAL LEAVE).

What is maternity?

This is a statutory right enjoy by women to leave their work for a specified numbers of days or period of time with the sole aim of attending to their personal health arising out of pregnancy, (including adoption and surrogacy) of a yet to be born child and the care for their newly born child (children) having produced a medical certificate or report stating their period of confinement and expected date of delivery.

Maternity leave is made of two part prenatal (ante-natal) and postnatal leave. Prenatal Leave according to the Nigerian Labour Act is the six weeks period preceding child’s birth while the postal leave is another six weeks immediately after the child’s birth. By implication and statutorily too maternity leave in Nigeria is twelve weeks (three months) leave with pay or benefits.

Article 54 (1) subsection (a) states that a woman shall have the right to leave her work if she produces a medical certificate given by a medical practitioner stating that her confinement will probably take place within six weeks

Subsection (b) of the Act further states that shall not be permitted to work during the six weeks following her confinement.

BASIS FOR MATERNITY LEAVE

Reproduction and the sustainability of the human race are linked majorly to healthy sexual-cohabitation and maternal well-being. There are of course scientific breakthroughs that have further made conception and delivery easier than they were some years back. However, because of the delicate nature of the human biological and physiological make up it has become necessary to pay attention to pregnancy, child bearing and nurturing processes in every society.

Therefore, the fundamental reasons for granting maternity leave would include but not limited to the following:

• Ensure the sustainability of the human race through both natural and artificial contraceptive methods. Because human beings are not robots it then implies that human race can only regenerate itself through natural conception or artificial insemination or fusing of the mans sperm and the womans egg or ovary or other scientific methods, but it must involve the male and female reproductive system.
• To promotes the joy of parenthood. Most women would talk of the joy of being pregnant and knowing that there is a fetus that receives live in them. People are at liberty to conceive through the natural or artificial ways and are not to be denied the right of parenthood.
• To mitigate complications arising from being pregnant. Being pregnant sometimes comes with its attendants health concerns and challenges. This necessitated the need to set aside adequate time and precautions for such envisaged or un-envisaged pregnancy related illness. The International Labour Organization (ILO) stated clearly that On production of a medical certification, leave shall be provided before or after the maternity leave period in the case of illness, complications arising out of pregnancy or childbirth. The nature and the maximum duration of such leave may be specified in accordance with national law and practice. This provision implies that even after the maternity leave might have been exhausted if there is certified medical concern for the mother or childs health such period of absence from work for the purpose of recuperation must be extended.
• The need to sustain the human production system (Industry and human civilization). Without disregard for the enormous benefits of family planning and birth control and mechanism by different government to manage their population the fact still remains that the human civilization can and will only be maintain and sustained by paying attention to family health and procreation.

• To promote parents and child bonding at early infancy. Numerous research finding and study have shown that when parents mostly mother and infant stay close at early infancy the babies tend to grow healthy and become strong emotionally. Deepak Chopra, M.D. stated that close attachment between the infant and the mother prevent diseases, boost immunity, and enhance IQ in baby

To further support this an experiment by the Ohio State University, shows that rabbits that were engaged and cuddled by their mothers were better and well protected against artery €“clogging affect of high cholesterol diet
The researchers came up with the statements that The love and attention affected the rabbits hormone level and help them withstand heart diseases
In another research at the MCGill University in Montreal Canada, it was discovered that female rats that stayed attached and lick their pups, have pup that grew up to be less stressed and more adventurous and become well groomed.
The emphasis here in to promote bonding between parents and infant, even when the child and mother are separated at birth that union that comes after are healthy for the development of the child.
• The need to put the expectant mother in a stress-free condition prenatal and promote recuperation after childbirth (Postnatal). As a father I understand the burden of motherhood and I know quite well that it could be problematic when adequate time is not given for the expectant mother to rest and fully recovered before going back to work. This has informed government and employers of labour to pay adequate attention to such issues as maternity leave.

• To promote breast-feeding. Research and pediatric opinions have shown that breastfeeding is not only good for the child but its equally help the breastfeeding mother to stay healthy and well. Six months exclusive breast feeding is recommended. Researches has shown that babies that are properly breast fed develop better resistance to stomach viruses, respiratory illnesses, ear infections and lower risk of babies having asthma. Breast milk contains antibodies that help children fight bacteria and other child related diseases. One way of effectively supporting breastfeeding is to grant leave to the mother to attend to the care of their children while they still retain their means of livelihood. Though mothers must not necessarily be with their babies 24/7 with the advent of milk extraction devices such as breast pump however the observation of half an hour twice-a-day break time should be observed and granted to nursing mothers.

IS MATERNITY LEAVE STATUTORY?

Most nations of the world are members of the International Labour Organization, since members subscribe to the ILO convention it then means once decisions are taken by the organization all members who subscribed to it must effectively domesticate the convention decisions and ensure that they are implemented.

To the effect above, Article 183 titled: Maternity Protection Convention 2000 ( No. 183), concerns itself majorly with the revision of the maternity protection convention ( Revised) 1952 and enter into force on February 7th, 2000 adopted by signatories to the Geneva 88thILO session, June 15th, 2000).
Article 4 of the convention resolution states that a woman to whom this convention applies shall be entitled to a period of maternity leave of not less than 14 weeks Subsection (2) went further to state that The length of the period of the leave referred to above shall be specified by each member in a declaration accompanying its ratification of the convention.

On the issue of duration, subsection 3 states that Each member may subsequently deposit with the Director General of the International Labour office a further declaration extending the period of maternity leave This provision accounted for the variation in the period of maternity across national boundaries but specified a minimum of 14 weeks.

WHAT IS THE POSITION OF THE NIGERIAN LABOUR ACT ON MATERNITY LEAVE?

Nigeria is a signatory to the ILO convention on maternity protection, the Nigerian Labour Act states clearly in Article 54 section 1 subsection (a) that a woman shall have the right to leave her work if she produces a medical certificate given by a registered medical practitioner stating that her confinement will probably take place within six weeks

b) Shall not be permitted to work during the six weeks following her confinement

This implies that the Nigerian Labour Act recognizes a 12 weeks maternity leave period. However, this can be extended based on the advised of a registered medical practitioner on the ground of illness.
COMPARING LENGTH OF MATERNITY LEAVE AND PER CENTAGE OF WORKERS WAGES PAID AS MATERNITY LEAVE ALLOWANCE
S/N COUNTRIES LENGTH IF MATERNITY LEAVE EARNING PERIOD PERCENTAGE OF WORKERS WAGES PAGE AS ALLWANCE
1 Sweden 68 weeks
( At least 60 days for each parent with the rest being transferable) 80 % for 390 days while lump sum is paid for 90 days
2 Croatia 52 Weeks 100% for 26 weeks and lump sum paid for the remaining 26 weeks
3 Serbia 52 weeks 100%
4 United Kingdom 52 weeks 90%
5 Canada 50 weeks 0 %
5 Italy 20 weeks 80%
6 Russia 140 Days
( 70 days before the birth and 70 days after childbirth) 100%
7 Lesotho 12 weeks 0 %
8 United States of America 12 weeks 0 %
9 Swaziland 12 weeks 0%
10 Papau New Guinea 6 weeks 0 %
11 Tunisia 4 weeks 50% for women in agricultural employment, 67% for those covered by the Labour code and 100% for civil servants

ENTITLEMENTS AND BENEFITS DURING MATERNITY LEAVE

• Absence for the purpose of maternity for a period of twelve (12) or (16) weeks as the case may be
• Shall be paid a minimum of 50 per cent of her regular salary (Some organization pay full salary during maternity leave period).
• Upon resumption to work for the next three week she shall be entitled to half an hour twice a day for the care of her child. This implies that she shall be allowed to close an hour ahead of her regular closing time.
• If for reasons of illness arising from her pregnancy or childbirth she shall be given an extended period of time recommended by a registered medical practitioner.
• Cannot be dismissed or sack during the prescribed or recommended period of maternity. Any notice of dismissal expiring during her period of maternity is a nullity.
• Marriage is not a condition for the granting of maternity leave since the law does not differentiate between legitimate and illegitimate child, they are same in the face of the Nigerian Labour law. So the practice of demanding for marriage certificate or marriage documents before granting such approval is illegal.
• Six months of continuous employment will qualify an employee for maternity leave with paid benefits.
• Enjoy general pay rise decision taken in the organization during the period of maternity leave absence.
• The right to return to work after the expiration of the maternity leave
• In case of early arrival of baby, maternity leave start a day after the unexpected delivery.
• Leave commences automatically if the worker is off duty for pregnancy related illness for the six weeks before the due date.

APPROVED PROCESSES IN OBTAINING MATERNITY LEAVE

I have discovered in the course of my interaction with people that sought for my opinion in area of maternity leave dispute with their employers that most of the time they failed to follow the due process in applying and obtaining approval for maternity leave. Also, Human Resource Department does not provide the staff with adequate information on their maternity right and processes that it entails.

STEPS TO FOLLOW WHEN APPLYING FOR AND OBTAINING MATERNITY LEAVE

1. Notification. Childbirth does not happen by accident at least a careful mother to be would noticed that she is pregnant at least six months into the pregnancy to sufficiently prepare and approach his or her line manager to obtain information on basic requirement for applying for and obtaining maternity leave.

2. Certificate or letter from a certified medical practitioner. This is about the most important aspect of obtaining approval for maternity leave. In Nigeria it is better to approach the company retained hospital or approved healthcare provider who will conduct a scan and determine a probable time of delivery and specified the period of confinement pre and postnatal.

3. Written and signed certificate of expected delivery confinement dates should be issued and addressed to the organization. It is expected that the original copy is kept by HR in the staff personal file and copies with approval should be sent to the line manager and unit heads for record purposes.

4. HR Approval. HR is to issue a letter addressed to the staff stating the commencement of her prenatal leave and postnatal leave and the staff expected return date to work and the twice half-hourly off period to attend to child care and its duration.

5. Finance and payment of benefit. It is the responsibility of HR to notify the finance or account department on the due date for the staff and instruct that the computed maternity pay be made readily available to support the expected mother. Payment must be prompt since the objective of such pay is to support the mother in caring for herself and the new born.

7. Leave extension arising from pregnancy related complication will require another letter from the healthcare provider advising the organization on the nature of the illness and the need for a predetermined numbers of extended days, weeks or month as the case may be.

8. Maternity related issue should be properly documented from the side of the staff as well as the organization because if not properly done it could result into legal tussle and related losses both to the individual and the organization.

A case in hand was Houben V. Telular Corp; 7th Cir.), where a sales manager (Susan Cooper Houben) for a company secured a contract in Europe in which she would be paid a percentage of all sales. But announced to her employer that she was pregnant, her appointment was almost immediately terminated with no reason given and her commission for the contract deal with Motorola not paid. She sued under the Federal Pregnancy Discrimination Law and other states laws in the USA. A Jury awarded her $ 98,364. The employer lost the case and subsequent appeal.

Another celebrated case in Nigeria was the case of Okunbowa V. Group Consultants Nigeria Project Adviser (Nigeria) Limited. The plaintiff was refused her wages by the defendants who went on to terminate her appointment while she was away on maternity leave having previously served the defendants a medical certificate from a certified medical practitioner. The court held that she was wrongly terminated even when her contract of employment did not provide for maternity leave entitlement. The court, however, aver that she was entitled to such leave by virtue of the Labour code now section 54 (1) and (4) earlier cited in this article. She was awarded the case and the defendants were asked to pay her salaries for the whole period of her confinement as well as damages for wrongful termination of appointment.

It is necessary to take note that in the UK, under The Equality Act 2010, Chapter 8.4 that it is an act of unlawful discrimination to treat a woman unfavorably because of her pregnancy or a related illness, or because she is exercising, has exercised or is seeking or has sought to exercise her right to maternity leave

The implication her is that if you follow the appropriate due process and taken the right steps, maternity related discrimination cannot and would hardly be won in any court of law by an employer.

SOME QUESTIONS AND ANSWERS RELATING TO MATERNITY LEAVE

It is important to state here before attempting to answer the under-listed questions which came from individuals who sought for my personal opinion on issues relating to maternity leave. Most of these questions are from Nigerians readers and some from other readers abroad. My answers shall relate only to Nigeria and will not in any way exhaust the discussions or claim to provide total solutions to the problem.

Also, I want it to be noted that my answers will relate to the ILO convention and the Nigeria Labour Act and at the same times my personal experience as an HR practitioner.

Lastly, it must be pointed out that the law provides a general guideline for maternity and mother/child protection right, it is however, important to understand individual contract of employment or collective agreement requirements entered into by individuals and their organizations.

Question

I was entitled to a thirty day annual leave, but during the course of my leave I took in (became pregnant) and fell due for maternity leave eight months after. My organization said I can only take the maternity leave and not the annual leave combine, what is your opinion on this? Thank you.

Answer

Legally speaking, annual leave vacation or holiday is different from maternity leave, hence, it cannot be said to be same thing. Having said this, it is however, important to look at individuals contract of employment since we have some organizations that agreed with their staff ab-initio that maternity leave and annual leave shall be combined depending on which comes first. Addressing your question, you can carry your annual leave to the subsequent year and still get paid if you are entitled to a paid annual leave.

Question

What happens in a situation when you became pregnant with another child while on maternity leave?

Answer
I have seen cases like these; it is not uncommon to see nursing mother gets pregnant post delivery even as early as one month or some few weeks after delivery. The standard practice is to inform your organization by providing them with the appropriate notices, appropriate notice here will include certificate from a certified medical practitioner. The law permit that you are granted maternity leave when you are due for it.
Question

I recently attended an interview when I was about six months pregnant, I presumed to have done well at the interview but one of the panelists asked about my expected delivery date to which I responded to in the affirmative. I was excused for a moment but when I was re-invited I was told that I wasnt qualified for the position. When I asked for the reason for my disqualification I was told it was internal to the panel. Can I sue for discrimination?

Answer

Honestly, the decision to whether you did well or otherwise at an interview rest solely with the panel, this is not to question your assessment of your performances. In as much as you have not been offered an employment contract or a letter intention to employ you it will be difficult to prove that you are discriminated against.
Question

I was less than six months with an organization when I applied for maternity leave; I was permitted to go for the leave but denied maternity pay benefit. Is this right?

Answer

The Nigerian Labour Act does not preclude any woman from maternity leave irrespective of length of employment. However, Section 54 (1) and (c) provided that such a woman who is less than six months in employment may not be paid maternity leave entitlement. If she is absence from her work in pursuance of paragraph (a) or (b) of this subsection and had continuously employed by her then employer for a period of six months or more immediately prior to her absence, shall be paid not less than fifty percent of the wages she would have earned she had not been absent: Having said that, organizations , contracts of employment or collective agreement may grant some concession. Please check with your employer for more information
Question

I worked in a multinational organization; I noticed that the expatriates staffers are given paternity leave while we the local male staff are denied such opportunity. What is the position of the Nigerian Law on this?
Answer

Honestly, the Nigeria Labour law is silent on the issue of paternity or Shared Parental Leave but in recent times we have seen some states government take such initiative i.e. Lagos State Civil Service now enjoy some limited privileges of paternal leave. However, it must be understood that majority of expatriate staff most times are employed based on their homes countries laws and so if such leave exist in their countries of original and it is specified in their contract of employment even if it does not exist in their countries of deployment they will definitely enjoy the leave while the local staff will not. But if such leave is recognized by your National Law and some staff are given while others are not then it would be said to be discriminatory.
Question

I could not return back to work after my maternity leave due to health challenges which necessitated me staying back for another two and half week. I put a call through to HR and the HR Assistant advised that I should take adequate care of myself and upon resumption that I should come with a doctors report. When I resumed back to work, the Head of HR asked that I should be issued with a query for overstaying my maternity leave to which I responded based on the advised given by her assistant. In the final analysis, the over stayed period was deducted from my salary. Is this right?

Answer

My personal opinion has always been that policy related matters should be properly documented, if you have obtained a written approval from the HR Assistant your position would have been better. Also, such request for an extension should be at the behest of the doctor and not you just putting a call across. It will be better that you asked the doctor to issue you with a written request and if you cannot deliver the letter to you organization, you can have someone do that on your behalf or scan it across to them and get a confirmation. In your case I dont think you have a strong case since there are no indications that you obtained the necessarily approvals.
Question

Is it an acceptable practice to fuse the entire three month of maternity into one as against dividing it into pre and postnatal leave?

Answer

The standard procedure to divide maternity into two parts namely antenatal and postnatal, but I have had situations where some women think that the second half is usually not enough for them to care for their new born so they request to stay on until some few days to delivery date. However, from the perspective of HR this also has some legal implications; for example, I had a case of a woman that was taken from the workplace to the maternity ward and she delivered when she was been driven to the hospital. For example, if there was a medical challenge the organization might be held liable. However, it is possible to have such arrangement depending on your organization but it should be purely advised in writing by a certified medical practitioner.
Question

I was given an approval to proceed on maternity leave based on a medical advice, but after proceeding for the ante-natal leave I had a delayed delivery for another one month. Since this delay would denied me time to care for my new baby can I asked for an extended time beyond the approved time?

Answer

It is important to note that maternity leave is time-bound and there are provisions for extension majorly on the ground of illness and the need for recuperation. The best option is to inform your organization of your condition and you will be guided accordingly. In some instances you could be granted extension that is not paid for or based on mutual understanding deducted from your annual leave.
Question

Upon resumption from maternity leave, I was told to report to another department. I tried to find out from my Head of Department who simply weaved it aside as mere internal arrangement.

Answer

Honestly, it is the prerogative of your organization to deploy you or move to department where they believe you can function effectively, if it is in the best interest of the organization you can be redeployed but not demoted or made you to suffer salary lost upon resumption from leave. What about if upon resumption you were informed that you have been promoted I am sure that will not be an issue?
NOTE
• Whilst I have made every effort to be guided by the Labour Act and common HR practices in my responses to the above questions, this information should however not be taken as a substitute to specific legal advice, your contract of employment or other collective agreements entered into. This blogger or writer or www.askkayodemicah.com.ng cannot be held liable for any errors or omissions arising therefore.

Conclusion

Every organization operates within the ambit of the Law both International and States or local laws so also is maternity leave and other related matters govern by law. Because maternity matter is treated as a statutory matter then individual workers and HR practitioners should be conversant with the enabling laws and conventions.

It is also important to say that practices, collective agreement and contract of employment are necessary tools that gives meaning to the implementation of maternity leaves and it must be treated holistically and not in isolation of one another.

Women constitute a significant percentage of global workforce and the onerous responsibility of conception and nurturing are placed in their hands even more than their male counterpart as such greater attention should be paid to their welfare, health and economic well-being.

This attention is also needed in the preservation of the human population and the preservation of world civilization.

Global best practices condemn any attempt at discriminating against woman in the workplace and more especially any of such action that impinge on pregnancy right and the health of the child.
This article has painstakingly pay attention to maternity leave matters, explaining individuals right, processes and procedures that governs maternity and it has also attempted to answer some questions that the writer had received from readers in recent times.

I hope you find this article helpful or if you would like to share more insight on it kindly feel free to contact the writer.

Thank you

REFERENCES

1. Having a baby in Russia www.expatica.com/ru/out-and-about
2. Houben v. Telular Cor. United States Court of Appeals Seventh Circuit. Susan Cooper Houben, Plaintiff v. Telular Cor. Defendant. Nos.99-2734,99-2892. Decided : November 03, 2000

3. Maternity Protection Convention , 2000 No. 183, Geneva, 88th ILO Session, June 15th, 2000
4. Nigerian Labour Act, Chapter 198 Laws of the Federation of Nigeria 1990.

5. Laws of Trinidad and Tobago, Maternity Protection Act, Chapter 45:57

6. Maternity and Paternity t work Laws and Practice across the World By Laura Addati , Naomi Cassirer and Katherine Gilchrist, 2014

7. Statutory Maternity Pay and Leave: employer Guide www.gov.uk
8. Womens Rights to work in Nigeria: An Appraisal Asika Ige and Olukemi Adekile 2012

9. 10 Things to know about Breastfeeding Sara Lippmann. In American Baby Magazine

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