Traditionally only Female Employees were granted maternity leave by their Employers. The Basic Conditions of Employment Act, 75 of 1997, as amended, stipulates in Section 25 that an Employee is entitled to at least four months consecutive maternity leave.

This left many Fathers and Same-Sex Parents (who are not female) without any recourse as they were only allowed to take family responsibility leave and/or annual leave when their child was born.

This seems particularly unfair in a country where we have the Equality Clause, Section 9 in the Constitution[1] that stipulates that “everyone is equal before the law and has the right to equal protection and benefit of the law.”[2] Section 9(3) further determines that there may not be unfairly discriminated against anyone based on inter alia gender, sex, pregnancy and sexual orientation.[3]

It is thus quite surprising that even in 2018 the Legislature has not amended the Basic Conditions of Employment Act, 75 of 1997, to make provision for paternity leave and/or parental leave being granted to Same-Sex Parents.

Employers are thus faced with a difficult task when they have to decide whom may be granted maternity leave. Should they follow the Basic Conditions of Employment Act, 75 of 1997, as amended, to the letter or should they implement their own additional Human Resources Policies to make provision for maternity leave that is not only applicable to Female Employees?

The Labour Court gave guidance on this in MIA v State Information Technology Agency (Pty) Ltd[4]. The merits of the case will not be discussed in detail below but more emphasis will be placed on the guidelines that the Labour Court gave. This will give valuable feedback to Employers.

Decision of the Labour Court

The Labour Court had to determine whether the Employer had unfairly discriminated against one of its Male Employees by refusing to grant him maternity leave. The Employee that referred the matter to the Labour Court was a Homosexual man, that was legally recognised as the parent of a child under a Surrogacy Agreement that was entered into in accordance with the provisions of the Children’s Act, 38 of 2005, as amended. He was the primary caregiver of the child. The Employer refused to grant his application for maternity leave based on the argument that maternity leave was only available to Female Employees.[5]

The Labour Court stated that maternity leave is granted to biological mothers to give them the opportunity to recover from the physical effects of childbirth. However, the Labour Court further stated that maternity leave for primary caregivers must also be considered seeing as that would be in the best interests of the child.[6]

The Labour Court ordered the Employer to give maternity leave to the said Employee. The Court even went further by stating that Employees in a similar position must be granted maternity leave on the same terms and conditions as biological mothers. It was not dependent on the primary caregiver being male or female.[7]

Practical Guidelines for Employers

It is clear from the judgment in MIA v State Information Technology Agency (Pty) Ltd[8] that Employers will no longer be able to grant maternity leave to Female Employees only. A gender-neutral approach to granting maternity leave to Employees should be implemented in all Human Resources Policies.

Furthermore, it will not be a requirement that an Employee will only be entitled to be granted Maternity Leave when that Employee is the biological parent of the child.

Conclusion

Employers should therefore revise their maternity leave policies and/or Human Resources Policies to make provision that this will be applicable to all Employees. Employers are also advised to amend their Employment Contracts so that all categories of Employees will receive the same benefits when it comes to maternity leave.

Written by Helena Roodt, Senior Associate Attorney from SchoemanLaw