Parental leave shake-up for South Africa after court ruling

The Constitutional Court upheld a ruling that now allows both birthing parents four months and ten days of consecutive parental leave, which can be shared as they choose, as opposed to the 10 days paternal leave previously afforded by law.

The ruling means South Africa’s parliament now has three years to make changes to the Basic Conditions of Employment Act 75 of 1997 (BCEA), which governs issues such as parental leave, but also ordered that in the interim, the new rules should apply immediately.

David Woodhouse, an employment law expert with Pinsent Masons in Johannesburg, said the ruling would create a new and immediate challenge for employers in South Africa.

“In this transitional period, employers are urged to consider their policies and procedures pertaining to parental leave closely and to update them in accordance with the court’s ruling,” he said.

“Compliance may not always be straightforward for employers, particularly without practice or established policies, and certain aspects of an employer’s compliance may require careful consideration. Matters that were previously outside of an employer’s ordinary purview, such as their employee’s spouse or partner’s employment and status, may necessarily become something employers have to take into account when processing parental leave claims.

Woodhouse also warned the judgment may produce unintended consequences for companies as they start to review their parental leave policies.

“For instance, many corporations afford their female employees paid maternity leave which is in excess of the statutory minimum in terms of the provisions of the BCEA, the provisions which were in the spotlight in this judgment,” he said.

”The principle giving life to the court’s judgment may be used in disputing the fairness of a policy or a contract of employment which only provides paid parental leave to a female employee.”

Werner and Ika van Wyk brought the case against the South African Ministry of Employment and Labour after Mr Van Wyk had applied for four months paternity leave following the birth of his child.  However, his employer informed him that under the BCEA, he was only eligible for 10 days. Mrs van Wyk was self-employed and operated two businesses. As these businesses would suffer if she were to take four months maternity leave, Mr van Wyk opted to take extended unpaid leave of six months from his employer.

Unhappy with this scenario, Mr and Mrs van Wyk launched an application in the High Court, with the support of Sonke Gender Justice, for an order declaring section 25 of the BCEA, which affords unpaid maternity leave of four months, as unconstitutional and invalid to the extent that it had been built around the idea that only women would require substantial parental leave.

Restrictions on the parental leave available for adoptive parents were also challenged.

The High Court found that the differentiation between fathers and mothers amounted to unfair discrimination and there was no reasonable explanation for adoptive parents being afforded a 10-week period of leave rather than the four-month period of leave provided for a birth mother. It ruled the provisions constitutionally invalid, and the Constitutional Court was approached to confirm the order of invalidity.

Originally the government had contested the application in the High Court, but in the Constitutional Court it accepted that the laws were out of date, were discriminatory on the basis of gender and human dignity, and were inconsistent with the Constitution.

The impact of the confirmation by the Constitutional Court is that parents will have four months and 10 days parental leave shared between them. It will be up to them to decide how they wish to allocate this leave and if no agreement can be reached, the leave will be split equally between the two parents.

“In this shifting landscape, it is in employers' best interests to consider their policies carefully to establish procedures to curtail any potential abuse of the system, and procedures to address these abuses should they arise,” said Woodhouse.

“Furthermore, companies are urged to develop their policies to cater for employees who may fill a parental role while not being the biological parent, such as adoptive parents or guardians.”