Both parents are now entitled to parental leave in equal measure

At a glance

• The Constitutional Court confirmed that parts of the Basic Conditions of Employment Act, 1997 (BCEA) and Unemployment Insurance Fund Act, 2001 (UIF Act) are unconstitutional due to unequal treatment of parents.
• All parents, biological, adoptive, and via surrogacy, are now entitled to four months and ten days of parental leave.
• Leave can be split between parents as they choose, with specific rules for birth mothers and single parents.
• Employers must update parental leave policies to avoid discrimination risks.
• Parliament has 36 months to pass remedial legislation; interim rules apply immediately.

On 25 October 2023, in Van Wyk and Others v Minister of Employment and Labour [2023] the Gauteng High Court declared that the provisions of sections 25, 25A, 25B and 25C of the BCEA are invalid on the basis that they infringe the rights to equality and dignity in the Constitution of the Republic of South Africa insofar as they unfairly discriminate between mothers and fathers; and between one set of parents and another on the basis of whether the children were born of the mother; conceived by surrogacy; or adopted. The corresponding sections 24, 26A, 27 and 29A of the UIF Act were similarly found to be invalid. The declaration of invalidity was required to be confirmed by the Constitutional Court.

The Constitutional Court has now confirmed the invalidity of those provisions of the BCEA and the UIF Act, but the declaration of invalidity has been suspended for a period of 36 months from the date of the order in order to allow Parliament to enact remedial legislation. Until such time as remedial legislation has been enacted, the Constitutional Court has made an order regarding changes to the parental leave provisions in the BCEA with immediate effect. In this regard:

• All parents (ie biological parents, adoptive parents, and parents who have children through surrogacy) are entitled to a total of four months and ten days' parental leave, and the parents may decide to split the period of joint parental leave in the manner they wish (subject to what is stated below regarding birth mothers). The parents can take this parental leave consecutively or concurrently or partly consecutively or partly concurrently but the parental leave must be taken by the parent concerned in a single sequence of consecutive days.
• In the case of a single parent or where only one parent is employed that parent is entitled to take the full four months and ten days' parental leave.
• A female employee who gives birth may not work for six weeks after giving birth unless medically fit and this six-week period must come out of the total parental leave allocation.
• If no agreement is reached between the parents as to how to split the parental leave (after deducting the six-week period referred to above in the case of birth mothers) the leave must be apportioned in such a way that each parent's total parental leave is as close as possible to half of the four months and ten days, provided that the leave is completed within four months from the date of the birth or adoption order.
• The Constitutional Court also declared that it is unconstitutional and invalid to limit parental leave and related benefits to where a child who is adopted is below the age of two years notwithstanding that the age cap was not found to be unconstitutional by the High Court. However, the changes to the BCEA ordered by the Constitutional Court have not removed the age cap of two and it appears that this will be left to the legislature to remediate.

Now that the declaration of invalidity has been confirmed by the Constitutional Court employers will need to review and amend their parental leave policies to align with the changes above. In terms of the BCEA, the new leave is unpaid, but employees can claim unemployment benefits from the Unemployment Insurance Fund and hence the relevant corresponding sections in the UIF Act have also been declared invalid in order to allow employees to claim benefits in the circumstances contemplated above.

There would be a risk of unfair discrimination claims where an employer has a policy whereby it pays female employees who give birth for the duration of their parental leave, but it does not provide similar benefits to the other biological parent who did not give birth or to parents who have children through adoption or surrogacy.