Warning over the end of paid parental leave in South Africa
Employers in South Africa may be left with no option but to remove paid maternal leave policies due to new changes mandated by the Constitutional Court.
In a widely-celebrated verdict in October, the ConCourt ruled that certain provisions of the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Act (UIF Act) were unconstitional.
The provisions in question unfairly discriminated between categories of parents by separating leave between mothers and fathers and other types of parents, and the court ordered that this be corrected in law.
In the interim, the court read in amendments to the laws, immediately allowing parents of all kinds to share a combined four months and ten days of leave between them when their child is born or adopted.
While this ruling has evened the playing field for parents, and allowed families of all kinds to take the necessary leave to deal with family matters, the changes could backfire on mothers who enjoy paid leave benefits at work.
According to Bradley Workman-Davies and Kerry Fredericks, directors and law firm Werksmans Attorneys, the shared-leave aspect of the ruling, alone, is likely to lead to conflicts and disgreements.
The ConCourt appears to have anticipated this, saying that, in the event of disagreement, the leave should be split as evenly as possible between the two parents.
However, this fails to address cases where the parents are employed by different companies—which is an overwhelming majority of dual-income households—and resultant conflicts in policy.
This means businesses and organisations are now likely to be pulled into the middle of disputes, the firm said.
“Even more worryingly, while the judgment is transformative in principle, it leaves employers facing an uncomfortable additional question in practice: what happens to existing paid maternity-leave policies that apply only to female employees?”
The legal experts noted that the BCEA establishes minimum unpaid leave entitlements.
However, most South African employers, particularly in the professional and corporate sectors, have long gone further than the statutory minimum by granting paid maternity leave to female employees.
“Those benefits have typically been designed around the former BCEA regime – four months’ maternity leave linked to childbirth,” the firm said.
“Under the new dispensation, these benefits now intersect with a gender-neutral leave structure that the BCEA never contemplated when those policies were drafted.”
Paid leave could be removed entirely
The legal experts said that the immediate question is what happens to these paid leave policies?
Paid maternal leave is often granted to mothers in recognition that a birth mother has a special biological case, being that birth requires a period of physical and even mental recovery.
This distinction is also made by the Constitutional Court, which said that “the mother must have preference in respect of the time currently allocated as preparation for and recovery from birth“.
However, under the new policies, birth mothers are generally treated the same as “other mothers or parents”.
“This is problematic for paid maternity and parental leave policies, as there does not appear to be any substantial basis upon which a distinction can be made between a birth mother and other mothers or parents,” the experts said.
If companies and employers keep a policy that pays only female employees during parental leave, this appears inconsistent with the new constitutional principle of equality, they said.
They gave an example that is likely to be fairly common, following the ruling:
- An employer’s policy currently grants four months’ fully paid maternity leave to birth mothers.
- A male employee whose partner gives birth now requests two months’ shared leave under the Constitutional Court order.
- Although the employer must grant this leave request, if the employer refuses to pay the male employee on the basis that only women receive paid maternity leave, the differentiation may no longer be objectively justifiable.
Surrogate parents, same-sex and adoptive parents are also now entitled to share four months and ten days of parental leave.
“A paid-maternity-leave policy limited to ‘female employees who give birth’ will exclude them entirely, despite their parental role being equivalent,” the firm said.
“This exclusion has no medical justification and would almost certainly constitute unfair discrimination.”
The legal experts said that employers need to urgently review and revise their maternity policies to avoid the legal pitfalls and risks introduced by the new changes.
However, the economic reality of the workplace may simply be that employers cannot afford a further large percentage of their workforce being unproductive for at least two months, while still being paid.
While they should consider paid entitlements for all parents, the likely outcome may be the opposite, they warned.
It might end up that “paid entitlements are removed for all categories and policies are updated—following fair processes to do so—to take away paid maternity benefits.”
“The Constitutional Court has rightly moved South African law toward equality of parenting. Yet equality on paper does not automatically translate into fairness in the workplace,” they said.
“In striving for equality, the Court may have forgotten Solomon’s wisdom — equality doesn’t always mean cutting the baby in half.”
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