The fight for equal parental leave: A landmark Constitutional Court ruling in South Africa

Author: Valentina Naidoo

On the 1^st November 2024, South Africa’s Constitutional Court addressed a seminal case that could materially alter the traditional approach to parental leave and unemployment benefits. This case scrutinised the constitutionality of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund Act (UIF Act), which currently offer preferential treatment to biological mothers, thereby excluding fathers, adoptive parents and commissioning parents from equal benefits.

Background of the case

The Commission for Gender Equality (CGE) initiated this legal challenge, asserting that the existing legislative framework perpetuates gender inequality by assigning primary childcare responsibilities to women. The CGE argued that this not only reinforces outdated gender roles but also discriminates against non-traditional families, thereby violating the constitutional principles of equality and non-discrimination.

The High Court previously found the BCEA and UIF Act unconstitutional for offering more benefits exclusively to biological mothers. This ruling acknowledged that such preferential treatment entrenched gender imbalances and falls short of supporting contemporary and diverse family structures.

Legal developments

The Constitutional Court’s primary task was to confirm the High Court’s ruling and determine an appropriate remedy. The court considered several interim relief proposals to address the legislative gap while awaiting permanent amendments from Parliament. These included:

1. Each parent being entitled to four months of leave.
2. Parents sharing a combined four months of leave.
3. Extending the current joint leave to four months plus two weeks.

Additionally, the CGE appealed to extend parental leave rights to adoptive parents of children aged two and older, a provision currently missing in the legislation. Interestingly, the Minister of Employment and Labour had chosen not to oppose the relief sought and filed a notice to abide by the Court’s decision. However, on the 8^th October 2024, the Minister made a late attempt to file submissions opposing aspects of the proposed interim relief and the CGE’s appeal. Given that the CGE’s application was filed nearly a year earlier, this late submission was both unusual and procedurally out of time. The Constitutional Court has consequently rejected these submissions, requiring the Minister to file a formal application for condonation.

The Constitutional Court ultimately upheld the High Court’s ruling, marking a significant step toward equal parental leave for all parents. This decision mandates immediate legislative amendments to ensure compliance with constitutional principles.

Practical implications

The ruling has profound implications for employment law and HR operations in South Africa. These include:

1. Enhanced gender equality in the workplace: By recognising the childcare responsibilities of all parents, the ruling promotes gender equality which is in line with the direction modern societies are taking. Employers must now adapt their policies to ensure equitable leave benefits, fostering an all-inclusive workplace environment.
2. Support for diverse family structures: The decision acknowledges and supports non-traditional families, including adoptive and commissioning parents. This inclusivity can enhance employee satisfaction and ultimately employee retention, as all parents receive fair treatment. The more this happens the more stable businesses and institutions become.
3. Temporary HR policy adjustments: During the interim period before new legislation is enacted, HR departments may need to consider the impact on their own policies and plan for any legislative changes.
4. Long-term legislative changes: The decision subjects Parliament to immense pressure to enact permanent legislative amendments that provide equal parental leave for all parents. This will likely result in comprehensive reforms in employment law, requiring progressive updates to HR practices and compliance measures.

Some practical examples

1. The case of a working father: Previously entitled to only 10 days of paternity leave, a working father can now benefit from an equitable leave policy, enabling him to share caregiving responsibilities equally with the mother of his child. This is likely to allow both parents a balanced lifestyle and an opportunity for both to spend sufficient time with their newborn.
2. Adoptive parents: An adoptive parent of a child older than two years, previously excluded from parental leave benefits, can now benefit from the same leave entitlements as biological parents, ensuring that adopted children receive adequate parental care during their crucial developmental period.
3. Surrogate parents: Commissioning parents in surrogacy arrangements, who were previously not recognised under the laws, now have access to parental leave.
4. Country example: Sweden is renowned for its generous and flexible parental leave policies. Swedish parents are entitled to 480 days of paid parental leave per child, which can be shared between both parents. The policy allows parents to take this leave simultaneously or consecutively, providing significant flexibility. Additionally, 90 days are reserved specifically for each parent, ensuring that fathers are also encouraged to take leave.

The Constitutional Court’s ruling is a ground-breaking decision that advances gender equality, supports diverse family structures, and aligns South Africa’s parental leave policies with international best practices. This case not only sets a precedent for South Africa but also paves the way for legal developments in other African countries given our leadership position on the continent.

We are here to help! Should you need assistance with updating your parental leave policies, please reach out to a member of the team.