“Raising kids is part joy and part guerilla warfare.” (Ed Asner, actor with a great sense of humour!)
A game-changing judgment from our Constitutional Court sets out new rules for parental leave.
The joy of becoming parents, and a father’s leave dilemma
The birth of a couple’s first child presented them with both a bundle of joy and a practical dilemma. Dad wanted to be the baby’s primary caregiver while his wife carried on running her two businesses, so he asked his employer for four months’ parental leave. “Sorry,” said his boss, “the law only allows you ten days”. In the end he had to take six months’ unpaid leave – which came with some unhappy financial and career consequences.
Off to the High Court he went. That Court’s declaration of invalidity of the relevant provisions in the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Fund (UIF) Act has now been confirmed by the Constitutional Court – with some important modifications.
Let’s start with a quick look at how the current wording of the two Acts creates an inherent inequality between parents.
Out with the old: Different rules for mums and dads
In the far off “bad old days”, many expectant mothers had no job security or entitlement to maternity leave. That gradually changed for the better over many years, but even after a general entitlement to maternity leave was introduced it was, as the name suggests, available to women only. Then in 2020 came the brand-new and widely welcomed concept of “parental leave”, which brought fathers (and other non-birth parents) into the fold.
It was ground-breaking at the time but still not perfect, in that while biological birth mothers were entitled to “maternity leave” of at least four consecutive months, fathers (and other non-birth parents) got “parental leave” of only ten consecutive days. Adoptive leave and commissioning (surrogacy) leave was ten weeks for one parent but only ten days for the other. The UIF Act inevitably mirrored these inequalities.
In with the new: Parity for parents
The High Court found these discrepancies to be unconstitutional, and the Constitutional Court has now agreed. It’s given Parliament thirty six months to sort out the invalid provisions (new legislation is reportedly already in the pipeline), and in the interim the following changes apply:
- One parent employed: Where only one parent is employed, or in the case of a single parent, that parent gets the full four consecutive months’ leave. If the parent is an expectant mother, she can start her leave up to 4 weeks pre-birth (or earlier if medically certified). Otherwise, it starts on the day of birth.
- Both parents employed: Where both parents are employed, they get a total of four months and ten days of parental leave: the sum of what used to be the mother’s four months and what used to be the father’s ten days. This total can be shared between them as they agree, taking it consecutively (one after the other) or concurrently (together), or a mix of consecutive and concurrent. But however they split it, each must take their portion of leave in one single sequence of days. If they can’t agree on the leave split, it must be as close as possible to 50/50. Shared leave must be completed within the four-month period.
- Compulsory periods: There are no changes to the compulsory no-work period for the birth mother – a six-week recovery period after birth during which she may not work unless medically cleared. In the event of either a miscarriage during the third trimester, or a stillbirth, the birth mother must get the same six-week recovery period.
- Adoptive leave and commissioning (surrogacy) leave: The same equal splits now apply to all parents – natural, adoptive and commissioning. A provision limiting adoptive leave to children under two years old was declared invalid and unconstitutional, but remains in place for now, with the Court leaving Parliament to decide on an appropriate age limit.
- Other “parties to a parental relationship”: Leave in the shared pool applies only to “parties to a parental relationship”, defined as people who have assumed parental rights and responsibilities under the Children’s Act.
- Notice to employer: Employed parents must still give their employers at least four weeks’ notice (some sections refer to “one month” just to confuse the issue!) of their intention to take leave. If that’s not practical, notice must be given “as soon as reasonably practicable”.
Are you entitled to paid leave, and what about UIF?
Although you now have extended job security protection, you are still not entitled to paid parental leave unless your employment contract provides for it (common in larger corporates), or if a company policy or a collective agreement provides for it.
Better news is that the UIF allows you to claim for maternity and parental leave benefits, but currently still with restrictions mirroring the BCEA’s. The Court declared the relevant sections of the UIF Act invalid but again left it to Parliament to sort out, so it seems that nothing changes there for now.
An important note for employers
Review all your employment contracts, company policies and procedures to ensure compliance with these new rules. Communicate them to your employees to ensure there are no misunderstandings and no unrealistic expectations – not all the media reports and online articles on this new development are accurate!
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
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