Pregnancy and maternity leave are arguably one of the most sensitive and contentious issues in the workplace. In the past, these issues have placed women in precarious situations in terms of procurement and security of employment. Whether it was due to non-disclosure of pregnancy to the employer, or not informing the employer about taking maternity leave timeously, or losing out on a job interview because of the disclosure of their pregnancy, these are matters that the courts have had to consider and provide rulings on in order to align employment conditions with statute.
In the matter between Manyetsa v New Kelinfontein Gold Mine (Pty) Ltd (2018) 39 ILJ 415 (Labour Court) the court pointed out the complexities that pregnant employees face in the workplace albeit having the legislative backing and protection of being entitled to maternity leave. In a dictum by Tlhotlhalemaje J it was highlighted that –
“Notwithstanding great strides made in the protection of pregnant women in the workplace, they nonetheless continue to find themselves in unenviable positions where they suffer economic hardship as a consequence of their temporary condition which forces them to be off work. As an example, pregnant employees are compelled to take unpaid maternity leave where they work in high risk areas and where suitable alternative employment cannot be secured for them in the workplace. Effectively, these employees are rendered ‘unemployed’ whilst still officially employed, until such time that they can claim whatever nominal amounts are claimable under the Unemployment Insurance Fund, or when they can officially return to work.
It can further not be doubted that whilst on maternity leave, whether paid or not, pregnant employees by virtue of their absence from the workplace in certain instances invariably lose out on advantages of being at the workplace, such as bonuses, promotions, and career development in the form of training and development offered to other employees. They continue to worry about the prospects of their continued employment once they disclose their pregnancy or even after child birth. They worry about the health of their babies and their own general well-being upon their return to the workplace or their normal work-stations. Workplaces that provide child care facilities are a rarity. These problems cut across industries, but are even more prevalent in sectors of our economy that are traditionally male dominated such as mining. In the end, and in a cruel twist of irony, rather than enjoying motherhood and child rearing, female employees become unintended casualties of their own pregnancies or womanhood.”
Legislation on pregnancy and maternity leave
According to section 9(3) of the Constitution, pregnancy is listed as one of the grounds for non-discrimination. This means that no one may be directly or indirectly unfairly discriminated against based on their pregnant status. This is further reiterated in the Employment Equity Act 55 of 1998 (EEA). According to section 6 of the EEA, no one may directly or indirectly unfairly discriminate against another in the workplace on the basis of their pregnancy. This Act applies to both the employer and the employee. This effectively means that the employer must ensure and promote a fair and equal opportunity workplace that is conducive for all employees. Therefore, should an employee be pregnant they should not be placed in a vulnerable position by their employer or be put under threat of losing their job because of their pregnancy.
In terms of section 187(1)(e) of the Labour Relations Act 66 of 1995 (LRA), any dismissal based on pregnancy is an automatically unfair dismissal.
Section 25 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) stipulates the conditions of maternity leave. This section provides that an female employee is entitled to four consecutive months of maternity leave. Moreover, an employee is entitled not to work six weeks after the birth of her child. Furthermore, if an employee experiences a miscarriage during her third trimester or a stillbirth, she is entitled not to work for six weeks after her miscarriage or stillbirth regardless of whether the employee had commenced her maternity leave at that time. The Act further states that an employee intending to take maternity leave must formally lodge a written notice with her employer at least four weeks prior to the commencement of the maternity leave or as soon as it is practicable. Included in that written notice must also be the date the employee intends to commence the leave and the date the employee intends to return to work after the leave.
It should be noted that employers are not obliged to remunerate employees for maternity leave. However, since maternity leave counts as unpaid leave the employee is remunerated through the Unemployment Insurance Fund. Therefore, the employee must claim maternity benefits through the Department of Labour. Maternity leave does not amount to a dismissal, therefore the employer is obliged to hold the employee’s job open for her to return from a period of maternity leave. The employer may secure a temporary replacement for the employee who is on maternity leave until such time the employee returns to work.
In the matter between Mahlangu v Samancor Chrome Ltd (Eastern Chrome Mines)  ZALAC 14;  8 BLLR 749 (LAC) the company’s maternity policy provided for unpaid maternity leave if an employee falls pregnant twice within a three-year cycle and placing the employee into an alternative suitable position prior to maternity leave. In this case, the employee was not placed into an alternative position prior to taking maternity leave on reasons that there was no alternative position available for her. She was then placed on unpaid leave. However, just a few days later another employee was given alternative position on reasons that it had become vacant. The employee’s claim was that this differentiation amounted to unfair discrimination. The appeal court agreed that the employee differentiated between the pregnant employee and other employees on the basis of her pregnancy which occurred within a three-year cycle. The court held that the company failed to show that the discrimination was fair and rational or justifiable.
Is disclosure of pregnancy to employer mandatory?
There is no legislative obligation on the employee to disclose their pregnancy to their employer or prospective employer at any time other than when they serve their notice of intention to take maternity leave.
Automatically unfair dismissal
Section 187(1)(e) of the LRA deems dismissal on the ground of pregnancy as an automatically unfair dismissal. An employee who is on maternity leave is not immune to dismissal, however such dismissal may only be on reasons of operational requirements, provided that the employer can show that there was indeed a valid economic or related reason.
In the matter between Wallace v Du Toit  8 BLLR 757 (LC) the applicant was appointed as an au pair to care for her employer’s two young children. After two years, the applicant fell pregnant, and her employment was terminated. The employer claimed that he had made it clear at the pre-employment interview that the applicant would no longer qualify for employment if she had children of her own, as her loyalties to his own children would be divided, and that the employment relationship had lapsed by virtue of a “resolutive condition” having been satisfied. The applicant admitted that she and the employer had discussed her marital status before she commenced employment, but denied that she had been told that being childless was a condition of employment. The applicant sought compensation under the LRA for what she claimed was an automatically unfair dismissal.
The court held that such a dismissal is automatically unfair in terms of section 187(1)(e) of the LRA. The employer’s justification was that this was an inherent requirement of the job. However, the court held that the employer failed to provide a legal justification. Thus the court held that a dismissal where the reason is related to the pregnancy of the employee is automatically unfair and cannot be justified.
It is noteworthy that if the main reason for the dismissal is the employee’s pregnancy, the employer cannot rely on an ancillary reason (for example, the employee’s alleged deceit in not disclosing her condition). On the other hand, a pregnant employee cannot rely on her pregnancy as a defence or justification against conduct that constitutes a disciplinary offence.
Although legislation provides protection for pregnant employees, it is important for such employees, or employees who plan to start families to further familiarise themselves with the law in order to be well versed with their rights as well as what avenues they can take for relief. Thus, carefully reading the employment contract and juxtaposing it with the current law will come in handy in being better prepared for such delicate circumstances.
Author: Samukelisiwe Mbuthuma (LLB, LLM – UKZN)
Legal Intern at Sister In Law (Pty) Ltd.
Follow me on instagram: @snmbuthuma @sister_in_law_