THE COPPERBELT UNIVERSITY

NAME: FRANCIS MBEWE

STUDENT NUMBER: 21164355

COURSE: LAW

PROGRAM: LS 220

LECTURER: Dr. PATRICIA KAMANGA

DUE DATE: 31 st January, 2023.

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QUESTION

Mutinta has heard that the legal framework governing female members of stuff has
been changed in the Employment Code of 2019. The employment code has brought a
number of benefits to female workers. Explain these benefits to Mutinta.

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Employment law regulates the relationship between employers and employees 1. It
governs the duties, rights and privileges that both parties should enjoy in an
undertaking, it also prescribes the type of relief one gets when those rights and duties
are violated by either party. Other regulations for the employer-employee relationship is
the employment contract, company’s regulations and any union agreement, if any.

The Employment Code No. 3 of 2019 governs the employer-employee relationship in

Zambia and regulates the relationship that exists between the Employer and
Employees. The Employment Code Act consolidated the now repealed and replaced
Employment Act of 1965, the Employment (special provisions) Act 1966, the
Employment of Young Persons and Children Act of 1933 and the Minimum Wages
and Conditions of Employment Act of 1982. The essence of repealing and replacing
the aforementioned Acts was to ensure that a law be enacted to cure the lacunas that
were in the said Acts and to suit the dynamics of the labour market. As a consolidating
Act it lessens the burden of finding how a matter is to be regulated, the Act also
provides for equal treatment of similarly placed employees.

The Employment Code Act is the most important piece of legislation for regulating
employment relations in Zambia. The main purpose of the Act is to regulate the
employment of workers in Zambia and to provide for basic conditions of employment.
The Act sets standard practices that employers should follow from the creation of the
employment relationship, through their period of service and until termination. 2

The Employment Act applies to most employees who have a valid contract such as
private, state owned organisations and social services. The Employment Code “the
Code was enacted on 11th April 2019 and came into force on 9th May 2019. The Code in
its preamble provides amongst other things; the employment of persons, enforcement
mechanisms for contracts of service, benefits and entitlements of an employee,
protection of wages, and prohibition of discrimination at an undertaking and establishes
the skills and labour advisory committee and its functions 3.

1
https//www.cipd.co.uk/knowledge/fundamentals/emp-law
2
Chanda Chungu and Ernest Beele, LABOUR LAW IN ZAMBIA: AN INTRODUCTION,
SECOND EDITION, p3.
3
The Employment Code Act No. 3 of 2019.

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The Code in its quest for inclusion and fair treatment of women at an undertaking has
embedded in it some benefits that are to be accorded and enjoyed by women in
employment. The Code in sections such as section 41 and 45 provides for maternity
leave and nursing breaks for women in an undertaking. These and other sections will be
discussed in detail and outline how they benefit women in general.

The code in relation to women’s rights at a workplace provide for their job security. A
female employee is protected by the Act in circumstances such as where the female
employee is pregnant an employee may not terminate a contract of employment on
these grounds nor can they discriminate the female employee because she is pregnant,
but instead the Act provides that the employer will provide suitable tasks that are not
less favourable in their terms.

BENEFITS FOR WOMEN IN THE EMPLOYMENT CODE.

To better understand the benefits that a woman enjoys in an undertaking, there is need
to consider the sections that provide the benefits in the Employment code.

One of the major challenges faced by female employees is discrimination at a work

place, this can either be an employer choosing a male employee or prospective
employee over a female employee or prospective employee, even when the female
employee is well qualified, even more qualified than the male. Often employers
discriminate against women because they feel women are not supposed to be working
or have jobs but are supposed to be at home taking care of the house and children. To
combat this “injustice” the Employment Code in Section 54 provides for the nun
discrimination of persons this includes discrimination against sex or gender.

The challenges a working woman faces, especially a nursing mother, are some of the
aspects that have been taken care of in the Employment Code Act. Section 41 (1)(a) of
the Act provides for maternity leave and extended the length of the absence from 12
weeks to 14 weeks which is to be taken immediately before the delivery, it states that,

(1) Subject to an agreement between an employer and an employee which is

more favourable to the employee than the provisions of this section or a written
4
The Employment Code Act no. 3 of 2019.

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 law providing for maternity benefits, a female employee is, on production of
medical certificate, entitled to fourteen weeks maternity leave to be taken—

(a) Immediately preceding the expected date of delivery, except that at least six
weeks maternity leave shall be taken immediately after delivery;5

The Act also provides in section 41 (2) that the leave can be extended by a further 4
weeks in the case of multiple births, the leave may be extended on the recommendation
of a medical officer. It states that,

“The maternity leave under subsection (1) shall, in the case of a multiple birth be
extended for a further period of four weeks.”6

A female employee who remains in continuous employment with the same employer for
a period of 24 months is entitled immediately before the beginning of leave under
Section 417, is entitled to full pay during the maternity leave where the maternity
benefits are not payable under contract. Further Subsection (4) 8 of the act provides for
a female who is employed by more than one employer or a third party scheme, the
female employee is entitled to claim maternity benefits, the employer who pays said
benefits is entitled to claim or recover from the other employer or third party scheme.
This ensures that the female employee gets her entitlements and benefits from her
employers.

Section 41 (5)9 of the Act further provides, despite subsection (1), that a female
employee who delivers prematurely is also entitled to maternity leave and an extension
period that is recommended by a by a medical doctor.

The Code under Section 41 (6) provides for a female who is employed for a continuous
period of 12 months and suffers a miscarriage in the third trimester of pregnancy or
delivers a still born is entitled to six weeks maternity leave with full pay immediately after
the miscarriage or still born, however the still born or miscarriage should be certified or
attested to by a medical doctor. This leave has a beneficial mental health benefits, it
5
The Employment Code Act no.3 of 2019 Section 41(1) (a).
6
The Employment Code Act no.3 of 2019 Section 41 (2).
7
The employment Code Act n0.3 of 2019 section 41 (3).
8
The employment Code Act no.3 of 2019.
9
The Employment Code Act no.3 of 2019.

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gives the female employee time to process and heal from the pain that comes with
losing a child.

On the expiry of the maternity leave the female employee is entitled to return
immediately to her job that she previously held before the maternity leave, or any other
reasonably suitable work with terms and conditions not less favorable than those that
applied to her previous job. This is provided for in Employment Code Act no. 3 of
2019 in Section 41 (7). Notwithstanding the female employee having taken maternity
may proceed, with approval from the employer, on annual, sick or compassionate leave
or any other leave she is entitled, this is provided for in Section 41 (8) and she may not
forfeit this entitlement of annual leave which is stipulated in Section 41 (10) which
states that,

“A female employee shall not forfeit that employee’s annual leave entitlement
under section 37 because of having taken maternity leave.” 10

The Act under Section 42 provides that a female employee shall not resume work
within the 6 week of the delivery of the employee’s child, unless a medical doctor
certifies that the employee is fit to resume work, this is to ensure that the employee will
be working normally without any discomfort and yields better results of the undertaking.

Sometimes an employee want to exploit the females pregnancy or maternity leave, in

that they may try to dismiss the employee from work during that time, the Act has a
provision protecting female employees from unfair dismissal, imposition of some penalty
because of the maternity leave, this is provided in Section 43 which states that,

“Subject to section 50, an employer shall not, as a result of an employee’s

pregnancy or maternity leave—

(a) Terminate that employee’s employment;

(b) Impose any penalty or disadvantage the employee; or

(c) Adversely change a condition of employment in respect of that employee.”

10
The Employment Code Act no.3 of 2019.

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The case of Heather Maureen Campbell Musariri v Ischool Zambia Limited, 11 the
complainant in the case sued the employer on grounds that included unfair dismissal
due to the fact that the complainant was about to go on maternity leave, the court
observed that it was clear that the real reason for non-renewal was the pregnancy and
the eminent maternity leave of the complainant. It was submitted on behalf of the
complainant that it was illegal to dismiss or not renew a contract on the count of
pregnancy. Notwithstanding that the act that was being referred to is the repealed
Employment Act as amended by Act No. 15 of 2015 which was also amended by Act
no. 3 of 2019.
12
Section 44 of the Act further protects female employees from harmful work, this
means that the Act prohibits employers from requiring that a female employee performs
work in the excess of a normal day’s work two months preceding the employees
estimated delivery date. Subsection (2)13 of the Section 44 provides that a female
employee is not to perform duties that require standing for a continuous duration and or
work that may be detrimental to the employee’s health or that of the unborn child.
Subsection (3)14 provides for the protection of the female employee’s health, child or
unborn child in instances where the employee carries out work that is detrimental to
their health, the employer is to offer a suitable alternative with terms and conditions not
less that are not less favorable than the employee’s original terms and conditions of
employment. An employer is also mandated to exempt the female employee from
working night shifts if the female employee is in her third trimester of her pregnancy or
the female or is nursing a 6 months old child or below, this is provided for under
Subsection (4)

Section 4515 provides for a worker a nursing break, subsection (1)16 of the Act provides
for an employee who is nursing that employee’s unweaned child, the employee is
entitled to a nursing break, each working day, to take some time, at the suitability of the
employee and in consideration of the child’s needs, the nursing break under Section 45
11
(2016) HC NO. 391
12
The Employment Code Act no.3 of 2019, Section 41.
13
Ibid subsection (2)
14
Ibid subsection (3)
15
The Employment Code Act no.3 of 2019.
16
Ibid Subsection (1)

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(1) (a) shall be two nursing breaks each lasting 30 minutes or one nursing break for one
hour as provided under Section 45 (1) (b). This ensures that the child gets to have the
essential nutrients that is contained in breast milk, it also ensures that the female
employee continues to work.

Subsection (2) prescribes the duration that the employee shall be entitled to a nursing
break, it further prescribes the protection of such an employee’s wages and the
employer is not to deduct pay for the duration of the nursing break, it states that,

“The nursing break specified in subsection (1), shall

(a) Be for a period of six months from the date of delivery; and

(b) Not be deducted from the number of paid hours of work of that female
employee.

Despite the provisions of Section 1 an employer and the female employee may enter an
agreement with the female employee which is not less favorable on other conditions
than the ones in the Act17, this should be done when both parties to the agreement have
agreed on the conditions and terms.

A female employee is also entitled to a one day leave each month, this leave is given
under Section 47 of the Employment Code Act. Section 47 states that,

“A female employee is entitled to one day’s absence from work each month
without having to produce a medical certificate or give reason to the employer.”

The above provision has been an issue of great debate in that most employers feel that
women don’t need to have more days off seeing that they already have days such as
maternity leave. Some employers argue that the most female employees prefer to take
this leave on either Monday or Friday in order to prolong their weekends. To this effect,
while some employers may think they do not need to pay attention to this provision it
has far reaching consequences.

In conclusion, the employer is mandated to follow the set laws and ensure that women
are not discriminated against in an undertaking, they should ensure that there is equal
17
The Employment Code Act no.3 of 2019 section 45 (3)

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treatment of everyone in the work place. The set laws (the ones discussed above) are
for the enjoyment of every woman who meets the criteria set on that particular law, they
are not be violated and the violator of those laws may be sued and brought to justice for
depriving women in employment their rights. It is highly worthwhile that employers
should endeavor to hire female employees and inclusive, have an inclusive and
balanced workforce, follow the laws, and allow women to contribute positively to an
organization and development of the country at large

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BIBLIOGRAPHY

STATUTES
The Employment Code no. 3 of 2019

CASES
Heather Maureen Campbell Musariri v Ischool Zambia Limited

BOOKS
Chanda Chungu and Ernest Beele, LABOUR LAW IN ZAMBIA: AN INTRODUCTION,

SECOND EDITION.

OTHER PUBLICATIONS
https//www.cipd.co.uk/knowledge/fundamentals/emp-law

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