Both parents may now be entitled to parental leave in equal measure

9 November 2023 4 min read

By Justine Katz

At a glance

  • On October 25, 2023, the Gauteng High Court ruled that certain provisions of the Basic Conditions of Employment Act 1997 are invalid due to discrimination.
  • The corresponding sections 24, 26A, 27 and 29A of the Unemployment Insurance Fund Act 2001 were also found to be invalid.
  • If confirmed, these changes would grant all employees up to four months of shared maternity leave and require equal treatment for both male and female employees regarding paid leave during childbirth, adoption, or surrogacy. Employers would need to adjust their policies accordingly.

On 25 October 2023, the Gauteng High Court declared in Van Wyk and Others v Minister of Employment and Labour (2023) ZAGPJHC that the provisions of sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act 1997 (BCEA) are invalid on the basis that they infringe the rights to equality and dignity in the Constitution of the Republic of South Africa 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 Unemployment Insurance Fund Act 2001 (UIF Act) were also found to be invalid. The declaration of invalidity is still required to be confirmed by the Constitutional Court. If it is confirmed then the declaration of invalidity will be suspended for a period of two years to allow Parliament time to cure the defects.

Until such time as remedial legislation has been enacted, we set out below some of the interim changes that have been ordered by the High Court (subject to confirmation from the Constitutional Court):

  • Section 25(1) of the BCEA should be read in such a way that instead of an ‘employee’ being allowed to take at least four consecutive months’ maternity leave, the section must be read as allowing one or other parent to take the whole of the maternity leave period; or each parent taking a turn to take leave; and both employers of the parents shall be informed of the parents’ election in this regard. The effect of this is that either parent may elect to take statutory maternity leave and the parents may decide to split the period of joint maternity leave in the manner they wish.
  • Throughout section 25 wherever the word ‘maternity’ is used it should be replaced with the word ‘parental’, where appropriate in the context.
  • In section 25A(1) the sentence, 'an employee, who is a parent of a child, is entitled to at least 10 consecutive days parental leave' should be deleted and replaced with the following sentence, 'an employee who is a parent of a child is entitled to the leave stipulated in section 25A(1).' This means that there is no longer parental leave as both parents have to decide how to split up the maternity leave entitlement, which can now be shared. Therefore if one parent elects to take the full four months’ maternity leave the other parent will not be entitled to any parental leave.
  • In terms of adoption leave the following sentence, 'an employee, who is an adoptive parent of a child who is below the age of two, is … entitled to the parental leave in section 25A' should be deleted and replaced with, 'an employee, who is an adoptive parent of a child who is below the age of two, is … entitled to the leave stipulated in section 25(1).' This means that a parent of an adopted child or a child who is born through surrogacy is also entitled to four months’ maternity leave as opposed to the ten consecutive weeks’ leave that is provided for in the BCEA.

In terms of the BCEA, the abovementioned 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.

The following should be considered if the abovementioned changes are confirmed by the Constitutional Court:

  • All employees (regardless of gender) would be able to take up to four months’ maternity leave provided that collectively both parents of the child do not use more than the four months’ maternity leave entitlement;
  • Where a child under the age of two is adopted or the birth is through surrogacy the parents of such child would jointly be entitled to four months’ maternity leave (as opposed to ten consecutive weeks’ leave) and they can decide how to divide that between the two of them;
  • Where an employer has a policy whereby it pays female employees during maternity leave it would be at risk of unfair discrimination claims should it not pay its male employees who elect to take maternity leave; and
  • Where an employer pays employees who give birth to a child it would be at risk of unfair discrimination claims if employees who adopt a child under the age of two or have a child through surrogacy are not similarly paid.

Should the declaration of invalidity be confirmed by the Constitutional Court employers would need to review their maternity leave and parental leave policies to align with the interim provisions, pending the legislative amendments to the BCEA.

More to explore

Creation of terminal illness leave

Creation of terminal illness leave

Bill 171 of 2023 was filed on 3 October 2023 to amend the Labour Code's section 57, sub-section 12. The proposed change introduces a paid 'terminal illness leave' lasting ten days,...

California employers face new requirements under recently enacted laws and regulations

California employers face new requirements under recently enacted laws and regulations

California’s 2023 legislative session recently came to a close, with several bills bearing significant implications for California employers signed by Governor Gavin Newsom.

Paid domestic violence leave to be introduced in autumn 2023

Paid domestic violence leave to be introduced in autumn 2023

The Work Life Balance and Miscellaneous Provisions Act 2023 ( the Act ) was signed into law on 4 April 2023. The Act transposes the EU Work Life Balance Directive into Irish law....

Ombudsman for Equality’s decision on bonus schemes and family leave

Ombudsman for Equality’s decision on bonus schemes and family leave

In a recent ruling by the Ombudsman for Equality, potential discriminatory aspects of an employer's bonus program were examined.

Congress enacts laws on the prevention and treatment of endometriosis

Congress enacts laws on the prevention and treatment of endometriosis

A new law entered into force on 12 October, establishing guidelines for public policy on prevention, early diagnosis and comprehensive treatment of endometriosis. Female employees...

The EU Work-Life Balance directive has been adopted

The EU Work-Life Balance directive has been adopted

The Royal Decree-Law 5/2023, of 28 June, entered into force on 30 June 2023. The Act brings about a number of changes transposing the EU Work-life Balance directive.