Statutory minimum family leave provisions under the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Act (UIA) were recently declared unconstitutional by the High Court (Gauteng regional division), citing unfair discrimination between mothers and fathers and in respect of other types of parents (e.g., surrogate and adoptive parents). The ruling is subject to confirmation by the Constitutional Court. The High Court also suspended this declaration for two years, to give parliament time to amend the BCEA and UIA to eliminate the discriminatory aspects regarding equal treatment protections under the constitution.
Under the BCEA and UIA, mothers are entitled to four months of maternity leave with pay replacement benefits payable by social security for up to 17.32 weeks, while the partner of the primary caregiver (traditionally, the mother) of a newly born or adopted child can take up to 10 calendar days of partner leave, paid by social security as well. Adoptive and surrogate parents are eligible to 10 weeks of leave (for one parent), provided the adopted child is under age two (in the case of adoption).
According to the High Court, maternity leave is not solely based on the mother’s pregnancy and recovery but also on childcaring responsibilities, which can be met by either parent. The court also found that partner leave relegates the father or non-primary caregiver role to the sidelines, as a shorter leave entitlement (compared with maternity leave) limits the father’s/partner’s involvement in the early stages of a child’s life. Accordingly, the court concluded that the maternity and partner leave entitlements are discriminatory and should be amended to provide a shareable, gender-neutral entitlement where both parents have enough time off to meet their childcare responsibilities, which can be split between them. Under the same rationale, the court ruled that there are insufficient grounds for the duration of adoption and surrogate parental leave to be shorter than the four months’ leave for birth mothers.
If the ruling is confirmed by the Constitutional Court, provisional rules would apply under which new parents would be entitled to four months of shared unpaid parental leave in place of maternity and partner leave. Adoptive and surrogate parents would also be entitled to four months of unpaid parental leave.
Employers are encouraged to monitor this development and, if the judgment is confirmed, review their family leave policies to ensure compliance with the provisional rules. In practice, it is common among surveyed employers to provide family leave benefits in excess of statutory requirements, but the duration of enhanced leaves generally align with statutory requirements: 43% of companies offer maternity leave of 16 weeks at full pay at the median, 19% provide partner leave at full pay for 10 calendar days, and 18% offer adoption leave at full pay for 86 calendar days.
