A recent Labour Court judgment develops the prohibition against unfair discrimination on the grounds of pregnancy. An employer who took an issue with the timing of a complicated birth and the new mother's ability to have a new-born photoshoot while being unavailable to attend to work demands, was penalised with a hefty compensation award following the automatically unfair dismissal of a new mother.

In an earlier Webber Wentzel alert, we discussed why women employees allege discrimination on the grounds of gender or sex, rather than pregnancy or family responsibility, when they are discriminated against on those narrower grounds. One reason is that arguments supporting a case against discrimination based on pregnancy and family responsibility are less developed in our law than those developed for discrimination against a woman based on the grounds of gender and sex. Women employees may be more successful in their claim by casting the net wider and relying on the broader grounds of gender and sex. 

This approach is not always appropriate. Discrimination on the grounds of pregnancy is a standalone basis for discrimination in terms of the Employment Equity Act. A recent labour court judgment, Brandt v Quoin Rock Wines, develops the standalone protection against discrimination on the basis of pregnancy. 

In this case, a woman employee, who was the financial manager of Quoin Rock Wines, was told that her role became redundant while she was on maternity leave. The due date of the birth of her child was communicated to her employer and she had planned her maternity leave and the necessary handovers accordingly. Due to unforeseen complications during her pregnancy, she was hospitalised, and her child was born earlier than expected. She had to change her maternity leave period, which she communicated to her employer.

She stayed in hospital after the birth of her child and was readmitted to hospital after initially being discharged. Although women employees are not permitted to work for at least six weeks after giving birth, she remained available to her work colleagues and kept her work laptop with her to attend to work tasks. 

It appeared from the outset of her maternity leave that the CEO had issues with the date when she handed over her work, how she took her maternity leave, and the additional responsibilities that had to be distributed across the team (as well as external consultants) in her absence. The CEO was also frustrated that the employee could no longer be involved in the daily operations of the organisation until the end of her maternity leave, especially since he felt that she was unavailable to attend to her work but was able to have photoshoots done with her new-born child. At the end of her maternity leave, she returned to work but was instructed not to, because her position had become redundant as a result of her work being split between the CEO, other employees and the consultants. She received a notice of retrenchment. She challenged it, but was ultimately retrenched as she did not accept, as an alternative to her retrenchment, a position at a sister company at a reduced salary. 

The Labour Court found that the employee was dismissed for a reason related to her pregnancy, which was automatically unfair. The Court’s basis for this finding was that it appeared that the employer did not understand its statutory obligations in relation to maternity leave. The Court reiterated the view expressed in the De Beer v SA Export Connection CC t/a Global Paws case (De Beer) that, even if it places a considerable burden on an employer to make the necessary arrangements to ensure that a woman employee’s job is kept open during her maternity leave, this price has to be paid for women’s equal status in the workplace to be socially and legally recognised. It was clear to the court in De Beer that if an employer dismisses a woman employee due to her pregnancy and is not prepared to make arrangements to cover her temporary absence from work, this dismissal must be considered automatically unfair. The Labour Court agreed with the judgment in De Beer that it was clear that when the employee indicated how she would like to arrange her maternity leave, there were no grounds in law that supported her employment being under threat.

The employer was ordered to pay ZAR 800 000, amounting to 16 months’ salary, as compensation, since her dismissal was found to be automatically unfair. In cases of automatically unfair dismissals, employees may be entitled to a maximum of 24 months’ remuneration as compensation if they are successful in their claims. 

This is a clear example of how pregnancy is applied as a standalone ground of unfair discrimination. The court used this as the sole basis for addressing the issues faced by the employee in question, rather than attributing the unfair discrimination to gender or sex. This case reaffirms that women employees who are pregnant or planning a family are still faced with barriers to advancement in the workplace, but our courts are taking a zero-tolerance approach to such unfair discrimination. 

Employers must ensure that they do not unfairly discriminate against women employees on the grounds of pregnancy. They must ensure that they do not dismiss women employees for reasons relating to their pregnancy, which may fall squarely within the ambit of an automatically unfair dismissal. Failure by employers to do so may result in the courts ordering them to pay a hefty amount in compensation.

Written by Nivaani Moodley, Partner, Joani van Vuuren, Senior Associate & Jamie Jacobs, Associate from Webber Wentzel