The prohibition of discrimination and the workers’ right to maternity or paternity leave in light of the drafting history of Article 40 of the Constitution of Uganda and sections 56 and 57 of the Employment Act

Abstract

Workers’ rights are provided for under Article 40 of the Constitution (1995) and in other pieces of legislation. Sections 56 and 57 of the Employment Act (2006) (the Act) provide for the rights to maternity leave and paternity leave respectively. Section 56(1) of the Act provides that ‘[a] female employee shall, as a consequence of pregnancy have the right’ to maternity leave as a result of ‘child birth or miscarriage.’ On the other hand, section 57(1) of the Act provides ‘[a] male employee shall, immediately after the delivery or miscarriage of a wife, have the right to’ paternity leave. It is evident that under section 56, for a female employee to qualify for maternity leave, she doesn’t have to be married. However, for a male employee to qualify for paternity leave, he has to be married. The reason for this is explained in the drafting history of section 57. It is argued that this amounts to discrimination on the ground of marital status. It is also argued that section 56(1) is only applicable to biological mothers and excludes adoptive mothers, commissioning parents (in cases of surrogacy) and those who have committed abortion. This is also discriminatory but could be justified in the case of commissioning parents, adoptive parents and those who have committed abortion.