29 November 2021 by , and Employment Law Alert

Women's employment rights in the new normal

If you’d like to listen to a discussion on this topic, you can find our podcast on Women’s Employment Rights in the New Normal from 8 November 2021 here.  

The COVID-19 pandemic has put extraordinary pressure on employers and employees alike. Employers were forced to rethink what defines a “workplace”, and employees had to learn to adapt to remote working. In particular, the events of 2020 and 2021 disproportionately affected women in employment, as existing gender inequalities were amplified by the dual responsibilities of work and caregiving.

A McKinsey Global study revealed that in 2020, women’s jobs were 1,8 times more vulnerable to the COVID-19 pandemic than men’s jobs; while 2 million women, particularly mothers with young children, considered taking less demanding jobs or leaving the workplace because of the additional strain brought on by the pandemic. A more recent report further revealed that in 2021, one in three women were considering leaving their jobs or stepping back from their workplace responsibilities. These women cited additional caregiving responsibilities as their main reason, with other reasons including worrying that their performance was being negatively judged and feeling as though they needed to be available to work at all hours.

Policies unchanged

Interestingly, although extensive research shows that the pandemic disproportionately affected women in the workplace, there has been a lack of corresponding measures to address this strain on women. In Kenya, workplace policies and expectations remain largely unchanged, leaving women feeling burnt-out, and increasingly more so than men.

In MW v AN [2021] eKLR, the judge delivered a noteworthy decision, stating that “mothering, housekeeping, and taking care of a family ought to be given more value, especially where it is undertaken alongside formal employment”. Additionally, the judge opined that it was “no longer a tenable argument to say that a stay-at-home mother or a working mother does not work when they are undertaking caregiving responsibilities, as this type of work ought to be considered employment in its own right.” Likewise, in Yasmin Josephine Mokaya v Professor Kithure Kindiki t/a Kithure Kindiki & Associates [2021] eKLR, the court reaffirmed women's employments rights by determining that an employer who terminated a pregnant employee did so unlawfully and unconstitutionally. The court stated that an employer would not be permitted to make an unjustifiable excuse to terminate a female employee, especially during the employee's “hour of need”.

Although these recent judgments advance and reiterate women's rights in the workplace, a greater shift is required from an employer's perspective in order to uphold women's rights. According to another McKinsey Global study, if we fail to specifically address women's challenges in the workplace during the pandemic, then global GDP in 2030 is predicted to be $1 trillion below what it would have been had the COVID-19 pandemic affected men and women equally. 

Advancing gender equality

Employers need to take bold steps to address women’s rights in the workplace. Advancing gender equity and women's employment rights in the new normal will require diverse efforts and a focus on how work is changing and what is truly required to get the work done. This suggests that employers may need to adjust the norms, expectations and policies that relate to women, to create a workplace where women feel valued and able to work optimally, whilst still allowing the organisation to meet its business objectives. Some of the changes that employers can make include:

  • Creating flexible work arrangements: Employers should re-evaluate their policies to consider whether greater provision may be made for women. For example:
  • Providing for flexible working hours to allow women to work during optimal hours as opposed to set working hours.
  • Formulating a hybrid working policy that allows women to agree on when and where they can work, so as not to conflict with competing responsibilities.
  • Performance management: Employers should ensure that the women in their workforce are monitored and managed in a less rigid manner. Some practical ways employers can do this include:
  • reviewing and discussing the employee's work and expected outcomes; 
  • discussing how the employee intends to meet those outcomes, and what specific goals are to be met in achieving the outcomes;  
  • agreeing on specific timelines to complete work; and 
  • discussing monitoring systems that will assess the employee's continual performance. 

Thereafter, an employer may: 

  • create a regular feedback system to check in with employees, which will help identify and address any challenges and keep the employee engaged, accountable and feeling valued;  and
  • consider creating a policy that reiterates the performance and working expectations.
  • Disciplinary hearing: Employers should consider reviewing and modifying their disciplinary hearing policies to ensure that they take women's employment rights into account. For instance, looking at what may amount to misconduct or poor performance in the COVID-19 pandemic and whether these standards disproportionately impact women.

The pandemic presents an opportunity for employers to promote women's employment rights in a deeper way. However, a balance must be struck between accommodating women's employment rights and the employer's economic objectives. We recommend that employers continually monitor the impact of the pandemic on the women in their workplace, in order to determine the appropriate measures that need to be put in place.

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