Employers must update leave policies after landmark ConCourt ruling
The Constitutional Court has confirmed that sections of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund Act are unconstitutional because, when it comes to “maternity leave”, they unfairly discriminate against mothers and fathers, surrogate parents, and those who adopt children.
The declarations of constitutional invalidity were suspended for 36 months to allow Parliament to remedy the defects. The Court provided interim reading-in changes to the BCEA to operate pending remedial legislation (details provided below).
The judgment, handed down on Friday, confirmed the High Court’s declaration that sections 25, 25A, 25B, and 25C of the BCEA – which regulate maternity, parental, adoption, and commissioning (surrogacy) leave – and the corresponding provisions in the UIF Act (sections 24, 26A, 27, and 29A) are invalid to the extent that they unfairly discriminate between different classes of parents as to the length of parental leave and the unemployment benefits available and the periods for which benefits are paid.
It further declared that section 25B(1) of the BCEA and section 27(1)(c) of the UIF Act are invalid and inconsistent with the Constitution to the extent that they limit parental leave and related benefits to cases where the adopted child is below the age of two years.
The unanimous judgment marks a significant shift towards equality and flexibility in parental leave, with immediate practical consequences for workplace policies and practices.
“Employers must now extend parental leave benefits to all parents, regardless of gender or birthing status. This includes fathers and non-birthing parents, who are now entitled to share in the four months and 10 days of leave.
Employers should review and update their leave policies to ensure compliance and avoid discrimination.
Where paid maternity leave has previously been offered only to birthing mothers, these benefits should be extended equally to all parents.”