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Current maternity provisions ruled unconstitutional by high court – a milestone for equality and parental rights

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In a groundbreaking legal decision, the high court has declared the existing maternity provisions under the Basic Conditions of Employment Act unconstitutional, citing violations of the rights to equality and human dignity.

Pregnant mothers are still required to take leave at least four weeks before the expected due date and can typically return six weeks after giving birth. However, for all other purposes, the term ‘maternity’ is replaced with ‘parental’. File picture

By John Botha

IN A GROUNDBREAKING legal decision, the high court has declared the existing maternity provisions under the Basic Conditions of Employment Act (BCEA) unconstitutional, citing violations of the rights to equality and human dignity.

The verdict, handed down by the Gauteng High Court, marks a significant turning point in parental leave regulations, effectively reshaping established norms.

The catalyst for this historic judgment was the case of Werner van Wyk, who sough four months leave to care for his newborn child. His employer rejected his request, prompting Van Wyk and others to take the Minister of Employment and Labour to court.

The court’s judgment found that these provisions unjustly discriminate against mothers and fathers, as well as different sets of parents, based on factors such as the method of childbirth, surrogacy, or adoption. The declaration of invalidity has been suspended for two years to allow parliamentary processes to address this issue within amended legislation.

In response to this significant ruling, the court noted, “To accord a paltry 10 days’ leave to a father speaks to a mindset that regards a father’s involvement in early parenting as marginal. This, in our view, is per se offensive to the norms of the Constitution in that it impairs a father’s dignity.”

As a result of this landmark ruling, significant changes are being implemented. The previous BCEA provisions that regulate maternity leave have been declared unconstitutional and replaced with new regulations, ensuring that both single parents and pairs of parents are collectively entitled to at least four months of consecutive parental leave.

In cases where there are two parents, the leave can be taken according to their choice. They can either designate one parent to take the entire four-month period or share the leave between them. Employers must be notified in writing before the expected birth date regarding the chosen leave arrangement.

Pregnant mothers are still required to take leave at least four weeks before the expected due date and can typically return six weeks after giving birth. However, for all other purposes, the term ‘’maternity’’ is replaced with ‘’parental,’’ ensuring that there is no unfair differentiation based on gender, method of becoming a parent, or the number of parents involved.

The four-month period is available to all parents, irrespective of these factors, as long as it does not exceed four months and employers are duly informed of the specific periods of absence.

Furthermore, the Unemployment Insurance Fund will be amended accordingly, allowing qualifying parents to benefit from these policy changes if they are contributors to UIF.

To ensure compliance with this new legal landscape, it is imperative for all employers to revise their policies and practices related to parental leave, encompassing maternity leave, adoption, commissioning surrogacy leave, and traditional parental leave.

The court’s verdict, which has suspended the declaration of invalidity for two years, grants lawmakers the opportunity to address these crucial issues within the amended legislation. This landmark judgment not only marks a pivotal moment in the fight for gender equality and parental rights but also sets a new standard for parental leave provisions in South Africa.

* John Botha is the Joint CEO of Global Business Solution.

– BUSINESS REPORT

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