A recent High Court judgment in South Africa, Van Wyk and others v Minister of Employment and Labour, found that certain sections of the BCEA relating to parental leave, together with the corresponding sections of the Unemployment Insurance Fund Act (2001), were found to be discriminatory in terms of sections 9 (right to equality) and 10 (right to dignity) of the Constitution.
The High Court judgment found that the BCEA provisions were discriminatory against South African workers who had become new parents either through birth, surrogacy or the adoption of a child under two years.
Following the judgment, the government has been given two years to remedy these provisions in the BCEA. The court also stipulated that interim provisions would be implemented until such time as the BCEA had been amended.
These interim provisions aim to allow new fathers and same-sex partners more flexibility in how they take their statutory parental leave. However, this is subject to the Constitutional Court confirming the ruling of invalidity. This process is likely to take between one and two years.
Employees who are new fathers or the same-sex partners of women who have had a child are currently able to take only up to ten days of parental leave and claim associated Unemployment Insurance Fund benefits.
Parents who adopt a child under two years of age are currently entitled to ten consecutive weeks adoption leave or 10 consecutive days of parental leave, where the child adopted is over the age of two.
Under the proposed changes, once confirmed, both new parents (of any gender), whether through birth, surrogacy or adoption, will be able to choose which of them takes the statutory four-month parental leave period currently only available to new birth mothers. Parents may also freely allocate the four-month period between them.
Various aspects will require further clarification and guidance on implementation, including the effect these changes will have on an employee who has given birth and who currently may not return to work within six weeks of giving birth unless a medical practitioner certifies otherwise, and how employers will manage splitting leave between parents employed by different employers.
No doubt, practical solutions will be found to ensure the implementation of amendments aimed at removing discriminatory provisions.
In addition to the current statutory entitlements, many South African businesses already offer enhanced parental leave benefits, with some enticing provisions for eligible employees.
For example, some companies currently offer new fathers and same-sex partners 12 weeks’ leave at full pay. These benefits usually come with eligibility provisions, such as 12 months of continuous employment before the leave begins, or payback provisions should the employee resign within a given period.
Employees should consider their company’s enhanced parental leave benefits, in addition to the new statutory benefits, when planning parental leave.
South Africa’s move to strengthen its parental leave policy follows similar developments in other jurisdictions in the region, such as the United Kingdom and the European Union. Some EU member states are leading the way in enhancing parental leave entitlements in line with the EU directive on work-life balance, which sets out minimum standards for paternity and parental leave among others.
Shared parental leave and extended paternity leave contribute to gender equality by allowing parents of all genders to participate more fully in childcare while also ensuring mothers can re-enter the workplace earlier, increasing the balance between work and home life across the gender spectrum.
Author: Johan Botes, Partner, Head of the Employment Practice, Shane Johnson, Senior Associate, and Kirsty Gibson, Associate, Employment, Baker McKenzie Johannesburg
