Maternity leave and pregnancy: Instalment 1

Instalment 1: What laws protect a pregnant employee and what is such an employee protected against?

Some of the most frequently asked questions we encounter in practice revolve around the rights and protections afforded to pregnant employees. Due to the frequency of these questions, we have decided to set out in this series of articles some of the more frequently asked questions about maternity leave and pregnancy and our answers thereto.

There are a number of laws that protect pregnant women and women on maternity leave, the most notable of the Acts and relevant sections are summarized below:

1. The Constitution of the Republic of South Africa Act 108 of 1996:

1.1. Section 9 prohibits unfair discrimination on grounds of unlimited criteria including pregnancy.
1.2. Section 27 established that everyone has the right to health care services including reproductive health care.

2. Basic Conditions of Employment Act 75 of 1997:

2.1. Section 25 of the Act covers maternity leave and the provision of four consecutive months of unpaid maternity leave and the prohibition of an employee returning to work within six weeks of giving birth unless a medical practitioner or midwife certifies that she is fit to do so.
2.2. Section 26 of the Act covers the protection of employees before and after the birth of a child from hazardous effects on their health or the health of their child.

3. Labour Relations Act 66 of 1995:

3.1. Section 186 (1) (c) of the Act defines a dismissal to include situations where an employer refuses to allow an employee to resume work after she took maternity leave.
3.2. Section 187 of the Act covers Automatically Unfair Dismissals on grounds of pregnancy, intended pregnancy or any reason related to her pregnancy.
3.3. Section 193 of the Act covers Remedies for unfair dismissal and unfair labour practice.
3.4. Section 194 limits compensation in respect of Automatically Unfair Dismissals to no more than 24 months of the employee’s remuneration.

4. Employment Equity Act 55 of 1998:

Section 6 prohibits unfair discrimination against any employee on a wide range of grounds which include grounds of pregnancy. In terms of this act, the term “employee” includes applicants for employment.

5. Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child:

The Code covers the legal requirements, protection of the health of pregnant and breast-feeding employees and the identification of hazards. The code touches on encouraging workplace policies to encourage women to inform employers of their pregnancy as early as possible to ensure that the employer is able to identify and assess risks or hazards and take appropriate preventative measures if necessary.

Should you require any advice on these matters, please feel free to contact Marc Humphries on [email protected] or Candy Eaton Gaul on [email protected].

Candice Eaton

Head of HR and Labour Consulting, Johannesburg

Marc Humphries

Legal Advisor, Johannesburg