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Employment

OPINION: CAN MENSTRUAL LEAVE ADVANCE EQUITY IN THE WORKPLACE?

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Oratile Mpuchane discusses this topic with Candice Chirwa, a renowned menstrual activist and author, and delves into the matter from a labour law perspective.

The debate surrounding menstrual, or period leave as a fundamental right for all female employees has been ongoing in the conversation on gender equity. Equity, in this context, refers to providing everyone with the necessary resources to succeed. In recent years, workforce policies promoting inclusion and diversity have increased, with examples such as paternity leave benefits and paid menstrual leave being implemented by some organizations and countries. Countries such as Zambia, Indonesia, Japan, Australia, and most recently Spain have approved legislation allowing menstruators to take leave during their periods.

As a woman, I am aware of the debilitating pain that many experience during their menstrual cycles, which can cause them to miss work or school, ultimately affecting their productivity. Research suggests that 15-20% of menstruators will experience moderate to severe cramps in their lifetime, and a further 10% will have pain that is not well controlled with over-the-counter medication. While Botswana has not implemented any such policy, the Secretary for Gender Affairs in the Botswana Sector of Educators Trade Union, Chatapiwa Mabutho, said last year at a labour conference hosted by the Institute of Labour Employment Studies (ILES) that the union was aware of the concept of menstrual leave.

To understand menstrual leave in more detail, I spoke with Candice Chirwa, author, gender and social impact leader, and founder of Qrate, an NPO working toward the realisation of a period positive world, where women and girls have access to affordable sanitary products, proper sanitation and education.  In our conversation, Candice explained that as a policy, menstrual leave allows space for reduced stigma about periods and recognises the physical and often debilitating discomfort caused by having periods. Introducing menstrual leave at work and at school reinforces the idea that women and girls do not have to choose between getting an education, being paid a salary or suffering through illness. Last year, Unilever, a global FMCG group, announced that it recognised menstrual leave as part of its sick leave policy and provided women in the company access to sanitary towels. Unilever’s policy gives women 12 days of paid menstrual leave annually. While this type of leave is not yet common in our country, we must commend the strides made by the Zambian government. According to reports, every month, every woman in Zambia is legally entitled to a day off and they do not need a medical explanation for that. This is called “Mother’s Day” and an employer can be prosecuted for denying said leave. Of course, I am fascinated by how that affects productivity, what happens when 5 or more women in the company takes a comfort day? What happens in the instance of small businesses that need present resources?

“We should be looking at this on the basis of case-by-case examples to see whether it is working because I think what’s interesting is that in certain instances menstrual leave can work in a corporate setting and sometimes not. If we look at industries that require menstruators to be on the assembly line, on their feet all day working in retail that’s a different conversation labour unions and/or HR managers need to explore and look at what policies they review and introduce” Candice said.

These are all valid points but what does it mean for feminism and the equal rights many generations of women fought for and are still fighting for? Interestingly, while I was speaking with Candice she received a message on social media. This woman had taken a day off due to her debilitating period pains. Her employer was now taking disciplinary action against her for this and as a result she felt she was “being punished for having uterus.” From an employment law perspective, there are key fundamentals every employee must adhere to.

  1. leave must be approved before it is taken
  2. an employer or manager must be notified if you will not be at work and unless otherwise prescribed
  3. the employer must be furnished with a doctor’s note.

It is important that we recognise that laws and provisions such as menstrual leave and/or mental health days are not meant to be abused by the employees they benefit and furthermore that this not further increase the equality gap between the genders. Organisations including Emang Basadi Women’s Association are actively monitoring global discourse around Menstruation and their spokesperson points out that “organisational cultures and norms are normally designed in ways that are orientated towards the male norm, with menstruation and gynaecological health issues affecting women ignored.”

Menstrual leave looks good on paper, but its implementation and tracking will be difficult. This is a complex and multifaceted issue which will require sensitivity on the part of employer and honesty on the part of the employee to avoid abuse. Addressing the underlying stereotypes and discrimination that contribute to the need for menstrual leave is important and so is the need to recognise the unique challenges women face during their cycle – which should not impede business productivity.

How complicated is the issue of menstrual leave?

Quite complicated especially when considering matters of gender fluidity, privacy, discrimination and labour equality. In our diverse and ever changing world there is a need for this kind of flexibility but this could also perpetuate stereotypes that menstruation is a weakness, and that women are less capable or productive during their periods. Thereby possibly leading to women being passed over for promotions or opportunities due to a biological function. This is setback to the decades long women’s labour right movement.

Who qualifies? 

In the case of transgender men, non-binary persons and women who menstruate, it is tricky to determine as issues of sexual orientation vs preference become material and may complicate things further. Violations of privacy and victimisation are some of examples of pitfalls in its implementation as transgender and non-binary persons will also have to benefit from this policy even if they do not identify as women.

Conclusion
Currently menstrual leave benefits are not provided for in the Botswana Employment Act, however this does not prevent employers from offering some through internal policies. In the absence of legislation, where a menstrual benefit is considered, it is important that an employer, taking into account, the nature of the business, determine, amongst others: –

  1. what would be a reasonable leave entitlement;
  2. will the menstrual leave accrue in a similar manner to annual leave?
  3. does an employee require a doctor’s note to access the benefit?
  4. what privacy measures will be adopted to protect the employee and prevent perpetuation of false and sexist narratives?
  5. who is entitled to this benefit considering matters of gender fluidity?

The softer aspects of organisational culture to enable better and inclusive working conditions for people is evidence that indeed we are progressing as a society and this commendable. But there is still a lot of research that needs to be done on the efficacy and impact of menstrual leave on the quality of life for menstruators. Like Candice, I agree that there is a need to eliminate the taboo around menstruation and for more men to be brought into the conversation.

Finally, we encourage debate amongst employers and law makers in Botswana on the possibility of menstrual leave. We will be closely monitoring the developments on menstrual leave and are available to assist any employer should they wish to implement a menstrual leave benefit.

 *Ends*

Oratile Mpuchane is a Candidate attorney at Peo Legal. She holds an LLB from the University of Botswana (UB). Peo Legal encourages the expression of diverse views and thought leadership.

Should you require any assistance with the implications and application of the proposed Bill please feel free to contact us at info@peolegal.co.bw or +267 3975779.  

Newsflash: Retrenchment Post The State Of Emergency

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In terms of regulation 30E of the Covid-19 Regulations 1 (the Regulation), the retrenchment of employees during the state of emergency is prohibited. The State of Emergency is set to end on 30 September 2021 and therefore the prohibition against retrenchment will be lifted. Employers will be able to commence the retrenchment process in terms of Section 25 of the Employment Act 2 (the Act).

For a retrenchment process to be lawful it must satisfy both procedural and substantive fairness.

Substantive fairness speaks to the commercial or business justification for the retrenchment. In order for an employer to commence the retrenchment process there must be a commercial or business justification for the retrenchment. In the case of Innocent Chinu and 13 others v Pelican Moving Company, the Industrial Court held that “there is no distinction between operational requirements for purposes if making profit and for the purposes of ensuring survival of a business”. Though the employer has the managerial prerogative to economise its business, this prerogative must be exercised fairly 3 . Substantive fairness requires that:

  •  there must be a valid commercial rationale or justification for the retrenchment. If it turns out that the real reason was to victimise them then the commercial rationale for retrenchment does not exist;
  • employees must, in good time, be given relevant information in order for them to understand the reasons why their company is considering retrenchment; and
  • the employer must consider ways to avoid retrenchment or minimise its effects. The employer must show that all other alternative steps to prevent retrenchment or limit its scope have been duly considered and implemented.

Procedural fairness relates to the procedure followed by the employer prior to retrenching an employee. Procedural fairness requires that 4 :

a) once the employer forms the intention to retrench employees he shall immediately give written notice of that intention to the Commissioner of Labour and every employee who will or is likely to be directly affected by the retrenchment;

b) the employer must undertake consultations with the employees or union. Consultation must be done in good faith and not simply to afford the employee an opportunity to comment on a decision that has already been taken. The principal purpose of the consultations is threefold 5 :-

  •  for the parties to seek ways of avoiding or averting the need to terminate the employee’s employment;
  • if the retrenchment proves unavoidable, the parties should consult on a fair
    selection criterion and a retrenchment policy to be applied; and
  • to consult on ways of alleviating the hardships of retrenchment e.g a reasonable severance package and possible alternative employment opportunities within the business.

c) in terminating employment contracts, the employer, wherever reasonably practicable, must comply with the principle of first-in-last-out. In applying this principle the employer must take into account the need for the efficient operation of the company and the ability, experience, skill and qualifications of each employee concerned. Therefore a more skilled employee who recently joined the company may be retained due to the company’s requirements and a longer serving employee who is less skilled may be retrenched;

d) if within six months after retrenchment, the employer seeks to employ workers for occupations which were the subject of the retrenchment, the employer must give priority to the retrenched employees to such extent as it is reasonably practicable. Failure on the part of the employer to observe either procedural fairness or substantive fairness, or both, may invalidate the retrenchment.

Failure on the part of the employer to observe either procedural fairness or substantive fairness, or both, may invalidate the retrenchment.

Should you require any assistance with Employment Law and terminations, please feel free to contact us at info@peolegal.co.bw or +267 3975779.

The information contained in this newsflash was intended for our clients and correct to the best of the author’s knowledge at the time of publication. Before making any decision or taking any action, you should consult the contacts listed here.

Can an employer terminate an employee on 14 days’ notice during a probationary period?

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In terms of the Employment Act [Cap 47:01] (the Act), an employee may be employed on a probationary basis. The purpose of probation is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment. The probationary period should be determined in advance and must be of reasonable duration, determined with reference to the nature of the job and the time it takes to determine the employee’s suitability for continued employment. In the event the employer considers the employee’s performance deficient, the employer may, subject to Section 20 (2) of the Act, terminate the employee’s contract of employment during the probationary period.

Section 20(2) of the Act provides that where a contract of employment is terminated during a probationary period “by either the employer or employee under section 18 or 19 by not less than 14 days’ notice, the contract shall be deemed, for the purposes of this Part, to have been terminated with just cause and neither the employer nor the employee shall be required to give any reasons therefore”

In reconciling section 20 (2) of the Act with section 18 or 19 of the Act which provide for termination aligned to the period within which an employee is paid a wage, the Industrial Court in the case of  Diau v Botswana Building Society held that “…s 20(2) does not however suggests that any employee on probation should be given notice of 14 days. If he or she is a monthly paid employee he or she is entitled to a one month’s notice.” The effect of section 20 (2) is not to circumvent sections 18 and 19 of the Act, but to create a minimum threshold in the event that section 18 and 19 provide for a lesser notice period than 14 days. The court in Mosedame held that the conclusion that only 14 days’ notice is required when terminating a contract of employment during a probationary period is incorrect. The notice period applicable during a probationary period is determined by reading section 20 (2) together with sections 18 and 19 of the Act. Therefore, in practice section 20 (2) of the Act as read with section 18 of the Act means the following:

  • An employee who is paid daily wages or weekly shall be terminated on at least 14 days’ notice during a probationary period.
  • An employee who is paid every two weeks or monthly must be given at least 14 days or one month’s notice respectively during a probationary period.

The above notice periods will be sufficient for both sections 18 and 20 (2) of the Act as they are “not less than 14 days’ notice“. It is important to remember that the 14 days’ notice period is a minimum threshold and not in addition to the notice period one would have been entitled to.

Should you require any assistance with Employment Law and employment contracts, please feel free to contact us on info@peolegal.co.bw or +267 3975779.

The information contained in this newsflash was intended for our clients and correct to the best of the authors knowledge at the time of publication. Before making any decision or taking any action, you should consult the contacts listed here

 

Corona-virus (Covid-19) Legal Updates – Variation of Terms and Conditions of Employment

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Following the declaration by the World Health Organisation of the Covid-19 pandemic as a public health emergency the Government has implemented a six-month state of emergency effective 2nd April 2020 (the SOE). During the SOE a national lockdown has been declared and this has had an impact on Botswana’s economy. Economist Dr. Keith Jeffries, has opined that as a result of the lockdown, Botswana’s economy has lost BWP10.8 Billion and this economic slowdown has affected households, businesses and Government. Businesses ability to fully operate and generate revenue is under strain. Under normal circumstances, most businesses would reduce their workforce through either terminations or retrenchment. However, in terms of the Emergency Powers Covid-19 Regulations 2020 (Emergency Powers Regulations) employers are not allowed to terminate or retrench employees under the SOE.

In terms of the Emergency Powers Regulations movement of persons has been restricted resulting in the suspension of business operations and/or reduced revenues. To counter the adverse economic effects, businesses have amongst other things:

  • reduced employee salaries;
  • forced employees to take unpaid leave; and
  • reduced working hours and/or implemented shift working hours.
All of the above and/or related examples where the employer has unilaterally amended the essential nature of a contract of employment is a variation of terms and conditions of employment. In order for such variation to be valid the variation must be done lawfully.  In terms of the law, an employer is not allowed to unilaterally amend an employee’s terms and conditions of employment unless:
 
  • there are sound commercial reasons for doing so; and
  • the employer has negotiated the matter in good faith through a fair procedure, which requires prior consultation with employees.

If an employer changes terms and conditions unilaterally and without following the above procedure, the employee has an election either to resile from the contract or to sue for damages in terms of the contract. Subject to complying with the above, management retains the prerogative to make the final decision as regards to changes to terms and conditions of employment if the parties cannot agree to such changes.

Considering the impact the SOE will have on a business’s ability to normally function we recommend that you seek legal advice on how to effectively and lawfully vary an employee’s terms and conditions of employment.

Feel free to contact me on tebogo@peolegal.co.bw or alternatively call +267 397 5779 if you any questions on the above.