The High Court has handed down a landmark judgment declaring the sections of the Basic Conditions of Employment Act, 75 of 1997 (“BCEA”) dealing with maternity and parental leave as unconstitutional.
The Court held that sections 25 (Maternity Leave), 25A (Parental Leave), 25B (Adoption Leave) and 25C (Commissioning Parental Leave) unfairly discriminate between mothers and fathers, between birth-mothers and mothers through surrogacy and adoption in relation to the amount of parental leave afforded to them.
The declaration of invalidity was suspended for two years to afford Parliament the opportunity to amend the sections by eliminating the inequalities.
During the interim period, the Court Order, which sets out amended provisions in relation to sections 25 and 25A – 25C of the BCEA, will operate.
The effect of such Order is that “all parents of whatever stripe, enjoy 4 consecutive months’ parental leave, collectively. In other words, each pair of parents of a qualifying child shall share the 4 months leave as they elect.”
Thus, any employee who is a parent, regardless of differentiation on the grounds of gender and/or the category of parenthood (natural birth arrangement, adoption of a child younger than two years and a surrogacy arrangement) is entitled to four months’ parental leave.
The Court also found that each parent who is a contributor as defined in the Unemployment Insurance Fund Act, 63 of 2001 is entitled to UIF benefits.