On 25 October 2023, the High Court pronounced that the current provisions of the Basic Conditions of Employment Act (and the Unemployment Insurance Fund Act) dealing with Maternity- and other types of Parental leave, are unconstitutional and accordingly invalid. The basis for this finding was that it is unfairly discriminatory on the basis of the rights to equality and dignity.
The case before the Court
In the case of Van Wyk & Others v Minister of Employment and Labour the issue was about Mrs van Wyk, who had her own business and who wanted to return to work as quickly as possible after giving birth; and their decision that Mr van Wyk (who was a salaried employee) would be caring for the child. Under the BCEA, the father could however only get 10 days’ parental leave that would be covered by UIF, and not the full 4 months, as would apply to maternity leave. This situation gave rise to the matter before the court.
The basis of the argument to the Court was that the parental provisions of the BCEA unfairly discriminate between mothers and fathers, as well as between different sets of parents on the basis of whether their children were born of the mother, or were conceived of surrogacy or adopted, or the parents' gender, and the fact that it was assumed that one parent is the primary care giver and the other is only an ancillary parent. It was argued that the focus of parental leave should be on the nurturing of the child, and not on the physiological recovery of the birth-mother.
The High Court mostly agreed, and found that -
There should be no differentiation between the type of ‘mother’ in relation to leave - i.e. whether birth-mother, surrogate mother of adoptive mother, the same leave should apply;
There should not be differentiation between mothers and fathers (or the two parents) in relation to child-nurturing and their respective leave entitlements.
What does this mean going forward?
From a legal perspective, this pronouncement of unconstitutionality has to be confirmed by the Constitutional Court to be effective; and if so, the legislation then needs to be changed accordingly. The Hight Court has determined a period of 2 years for the Department of Employment and Labour to do so.
However, as an interim measure whilst this process is happening, the Court has further determined that all parents should be entitled to 4 consecutive months’ parental leave (whether birth- / adoptive / surrogacy) which must be covered by the UIF. BUT, with the proviso that the 4 months must be used collectively / shared between the parents of the child. Between the parents, they can then have 4 months’ parental leave (covered by UIF) and they can decide how to share this period between them.
What does this mean for employers?
The interim measure means that, if this finding and the proposed interim measures are confirmed by the Constitutional Court, any parent who qualifies for maternity-/parental leave under the BCEA, can now share with the other parent a period of 4 months’ leave, and the differentiation between maternity/paternity/adoptive/surrogacy leave which gave the birth mother 4 months and other parents either 10 days or 10 weeks, has fallen away.
Employers will have to review their Leave policies and Employment Manuals to make provision for the interim changes. Practical aspects to consider will include how the ‘sharing’ of such leave is going to be verified by the employer if the other parent works elsewhere.
Also, if an employer is currently providing maternity leave benefits, the issue of unfair discrimination may come up if this benefit is not also extended to other parental leave, and this is likely to have huge cost implications for the business. A re-think on the benefits strategy may be required.
Please note that this situation is still up in the air until the Constitutional Court has confirmed the High Court’s finding, and then also depending on whether the ConCourt confirms or amends the interim measures proposed by the High Court; and eventually, what the final legislative changes may look like. It is therefore important for employers to ensure that any changes in their policies and practices they make in this regard, is specified to be an interim measure only - and that these remain subject to the legislative process being finalised.
© Judith Griessel
[We are available to assist with a review of your maternity-/parental leave policies - firstname.lastname@example.org]