2017 looks set to bring about unprecedented change in South Africa when it comes to leave relating to the birth or adoption of a child. A fresh approach to maternity leave has already been sanctioned by the Labour Court, one that goes beyond the traditional notion that maternity leave should apply to biological mothers only. This groundbreaking development, which is already part of South African law, is discussed below. Part 2 of this ENSight looks at an even more dramatic legislative shift, which could soon see fundamental changes to the country’s employment law.

This widening scope of leave could have significant cost implications for employers. To mitigate this, and to ensure that businesses are well prepared to deal with this new leave environment, employers will invariably be required to review and, in most instances, amend and update their policies, to keep pace with these developments in the law.

The MIA case

Section 25 of the Basic Conditions of Employment Act, 1997 (the “BCEA”) states that “[a]n employee is entitled to at least four consecutive months’ maternity leave.” Historically, such leave has only been afforded to biological mothers. However, more recent developments in South African law suggest that a broader and more gender-neutral approach should be adopted by employers to give effect to the constitutional right to equality.

In the judgment of MIA v State Information Technology Agency (Pty) Ltd, the Labour Court was required to determine whether the employer unfairly discriminated against one of its male employees by denying him maternity leave. The employee was a homosexual man who was a legally recognised parent of a child under a surrogacy agreement entered into in terms of the Children’s Act, 2005. He was to take on the role of primary caregiver of the child. His employer rejected his application for maternity leave, arguing that maternity leave was available to female employees only.

The Labour Court acknowledged that maternity leave is meant to give biological mothers an opportunity to recover from the physiological effects of childbirth; but it went further in emphasising that maternity leave for primary caregivers must also take into consideration what is in the best interests of the child. The Labour Court thus ordered that the employee be granted maternity leave and pronounced that employees in a similar position (whether male or female) should be granted maternity leave on the same terms as biological mothers.

From this judgment, various principles can be gleaned (which point to the direction in which the law is evolving) in order to give effect to the right to equality when considering parental leave:

• employers should adopt a gender-neutral approach to granting maternity leave to employees;
• regardless of whether the employee gives birth to the child, an employee (of any sex or gender) should be entitled to maternity leave if that employee is to be the primary caregiver of the child and is either the child’s biological parent or parent by law;
• however, the statutory entitlement to maternity leave in these circumstances will arguably expire once the child is four months old. So, a primary caregiver of an adopted child who is older than four months might not be entitled to demand maternity leave in terms of section 25 of the BCEA; and
• no other parent must be taking maternity leave or playing the role of primary caregiver of the child during the period of maternity leave.

As the Labour Court stated that one of the objectives of maternity leave is the promotion of the best interests of the child, it is possible that, in the future, the law may develop even further to allow maternity leave to a non-parent primary caregiver of a child. If, for example, the biological mother dies during childbirth, a surviving grandparent might well argue that he/she has a legal duty to take care of his/her grandchild and that it would be in the child’s best interest for that grandparent to be granted maternity leave in those circumstances.

What the MIA judgment means for employers

In light of the Labour Court’s pronouncements in the MIA case, employers should begin reviewing and revising their maternity leave policies to conform with the above four principles, given that most of these policies were formulated before the MIA case and only envisage biological mothers as being entitled to maternity leave.

Existing maternity leave policies should be re-drafted in a more gender-neutral manner, without assuming that every applicant will be a biological mother. Biological mothers will, however, continue to constitute the vast majority of applicants and certain aspects of maternity and pregnancy will, of course, only apply to biological mothers.

Human resources managers should be alive to these developments in the law. This will enable them to deal appropriately with applications for maternity leave going forward, given that the law will increasingly give recognition to different types of family structures beyond the traditional family.

The need to amend the law was recognised by the Labour Court in the MIA case, in which the judge stated that “in order to properly deal with matters such as this, it is necessary to amend the legislation and in particular the Basic Conditions of Employment Act”. As set out in part 2 of this ENSight, this is already happening.

Written by Shivani Moodley, a candidate attorney in ENSafrica’s employment department, and Alex Ferreira
employment, director, ENSafrica.

This article was first published by ENSafrica. 

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