Written by Nana Akwasi Awuah[1]
The term maternity leave sounds like a cliché within the labour environment in Ghana. In recent times however, some employers are into the practice of granting paternity leave to their employees. Yes you read that right: paternity leave!
Article 24(2) of the 1992 Constitution guarantees the right of every worker to rest, leisure and reasonable limitation of working hours and periods of holidays with pay, as well as remuneration for public holidays. The right to rest and leisure means a right to leave with pay. The law attaches so much importance to rest and leisure for workers that section 30 of the Labour Act, 2003 (Act 651) frowns upon employees agreeing with their employers to waive their leave by rendering any such agreement void.
Although the Constitution guarantees the right to leave, it does not stipulate the modalities for the enjoyment of these rights. Thus, the Labour Act, 2003 (Act 651) sets out the framework for the enjoyment of these rights.
Parental leave may be said to be an employee benefit that provides for paid or unpaid time off work to care for a child or make arrangements for the child’s welfare.
Maternity leave is a period of paid absence from work to which a woman is legally entitled during the months immediately before and after childbirth. In Ghana, it is presently a minimum of twelve (12) weeks exclusive of the employee’s annual leave. Thus, the employer may agree to grant more than twelve weeks maternity leave to an employee. In the event of multiple birth, there is a further two weeks of maternity leave. The employer may pay or not pay for the additional time beyond the twelve weeks. Most companies have a policy which may form part of the contract of employment and may therefore become contractually binding.
Paternity leave is a period of paid or unpaid absence from work granted to a man by his employer immediately after the birth of his child. Although the Labour Act does not make express provision for paternity leave, it is the view of this writer that paternity leave is lawful and constitutional. The basis for this view is simply that the Constitution guarantees the right of “every worker” to rest and leisure a fortiori the right to leave. Article 17 of the same Constitution provides that all persons shall be equal before the law and that a person shall not be discriminated against on grounds, inter alia, of gender.
This view is further fortified by Article 7 of the International Convention on Economic Social and Cultural Rights. Article 7 of the Convention requires States parties to reduce the constraints faced by men and women in reconciling professional and family responsibilities by promoting adequate policies for childcare and care of dependent family members. This is strongly buttressed by Article 1(3) of the United Nations Charter and Article 2 of the Universal Declaration of Human Rights which guarantees the equal enjoyment of rights and freedoms without any discrimination as to gender, race, etc. Ghana is a signatory to all the above international treaties.
As already noted, the Labour Act contains elaborate provisions on maternity leave with none on paternity leave. One may rightly regard the current situation as a relic of the past cultural practices where women stayed at home to care for the kids. In today’s Ghana, both husband and wife work and are busy people. The husband should therefore get time off to assist with upkeep, as well as to enjoy some bonding time with the child.
Equal maternity and paternity leave encourages both parents to develop the necessary skills for the basic care of their child. This means that couples are in a better position to make long term plans about care arrangements for the child.
For instance, the couple may decide that the husband should take either an initial paid paternity leave or an extended unpaid paternity leave to care for the children. For some couples, it may make sense for the husband to take the paternity leave because it may not affect his work security, whereas for the wife it may be important that she stays at work to enable her qualify for some promotion.
It is further argued that equal maternity and paternity leave will improve society as a whole. Under the status quo, there is a persistent inequality between men and women in the workplace. Young women are often perceived by employers to be a risk: there is a serious possibility that they will become pregnant and take long periods of time off work. When choosing between men and women with equal skills, employers have an incentive to choose the man. The consequence of this is that women, whether they wish to have children or not, find it harder to secure employment or promotion, and earn less as a result. Equal maternity and paternity leave prevents employers from identifying one gender as a risk, reducing the incentive to employ men ahead of women.
Available statistics point to the fact that children tend to bond with their primary care giver than non-primary care givers. With equal maternity and paternity leave, children are more likely to develop meaningful relationships with both parents. If children grow up in homes where their parents view each other as equals, this will increase their expectations of equality within society as a whole, in turn making society more equal.
[1] Nana Akwasi Awuah is a lawyer with AB Lexmall & Associates.
