Maternity leave and unfair discrimination

Maternity leave and unfair discrimination

Business, Human Resources, Legislation

In South Africa, female employees are entitled to four months off when they give birth to their baby. This luxury is not afforded to a person who has not actually carried and given birth to their baby – and it is now being challenged in the High Court.

Werner van Wyk applied to his employer for four months off to care for his newborn child as his wife had to return to running her two businesses. This request was denied by the employer.

Mr. van Wyk has filed a case with the High Court requesting that Sections 25 (maternity leave) and 26 (protection of employees before and after the birth of a child) of the Basic Conditions of Employment Act be made unconstitutional, as they unfairly discriminate against fathers of newborn children. The Act, and specifically these sections, refer to females who have given birth, and thereby limit the rights of those who have not given birth or are unable to give birth.

This discrimination extends to same-sex couples, couples adopting, as well as those who have entered into a surrogacy agreement. In all instances, these individuals will receive substantially less time off to care for their newborn child.

In 2015, a same-sex couple entered into a surrogacy agreement and one of the parents applied for maternity leave, which was declined. This was referred to court, in which the plaintiff stated that he had been refused leave because he was not the biological mother. The Labour Court ruled that maternity leave is not linked solely to the welfare of the mother but also to what is best for the child. In this case, the Labour Court ruled that the maternity leave policy of the employer was unfair, and directed the employer to amend their policies and pay the employee his four months of maternity leave. The Labour Court acknowledged that the Basic Conditions of Employment Act would need to be amended and this new case may put this into motion, but that it will take time.

In the meantime, it is important that employers review their own policies – especially where you offer paid time off – to ensure that you are applying the benefits fairly, regardless of whether the person was or was not able to give birth to the child.

If you are in need of a helping hand, HRTorQue can assist with the development of policies or the review of your current practices. Email us on [email protected] for more information.