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.
Law firm Cliffe Dekker Hofmeyr said 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,” CDH said in a commentary.
Background to the case
The two consolidated matters arose from (i) an application by Mr Werner and Mrs Ika van Wyk and Sonke Gender Justice (a non-profit organisation that advocates for gender equality) and (ii) an application by the Commission for Gender Equality (an institution contemplated in Chapter 9 of the Constitution) and Sonke. The Minister of Employment and Labour was the respondent in both matters.
Five amici curiae (friends of the court) were admitted, to provide submissions on both applications: the Centre for Human Rights at the University of Pretoria, Solidarity Centre, International Lawyers Assisting Workers Network, Labour Research Service, and the Centre for Child Law.
Before the birth of their son, the Van Wyks agreed that Mr Van Wyk would be the primary caregiver once he was born because Mrs Van Wyk had two businesses to run. Mr Van Wyk approached his employer seeking four months’ consecutive parental leave but was informed that he was eligible for only 10 days’ leave because the maternity leave policy was reserved for female employees who had given birth. Given the potential financial ramifications that his wife’s business would suffer if she were to take four months’ maternity leave, Mr Van Wyk opted to take an extended unpaid leave of six months from his employer, which consequently affected his finances, his working conditions, and his career prospects.
The Van Wyks, along with Sonke, approached the High Court in Johannesburg for an order declaring the impugned provisions of the BCEA as unconstitutional and invalid. They submitted that the parental leave regime in the BCEA and the UIF Act provides greater benefits to biological mothers than to every other category of parents, notably fathers.
In October 2023, the High Cout declared the impugned sections of the BCEA unconstitutional to the extent that the provisions unfairly discriminate between categories of parents and based on whether children were born of the mother, conceived by surrogacy, or whether they were adopted.
Read: Any parent is entitled to four months’ parental leave, rules High Court
Constitutional Court’s key findings
- Discrimination between categories of parents
The BCEA and the UIF Act differentiate between (a) birth mothers and other parents (biological fathers, parents in same-sex relationships), (b) adoptive parents and biological parents, and (c) commissioning parents in surrogacy arrangements and other parents. These distinctions affect the duration of leave and entitlement to UIF benefits. The applicants argued these differences were unfair and unjustifiable and impaired dignity and equal parental choice.
The Minister of Employment and Labour accepted that the statutory scheme differentiates between birth mothers and other parents and conceded that the differentiation is discriminatory and inconsistent with the Constitution. The Minister also accepted that the provisions violate human dignity. Given this acceptance, the Constitutional Court treated the constitutional defects as established.
The apex court agreed with the High Court that the existing scheme provides birth mothers with significantly longer parental leave than other parents (who are typically limited to 10 days or a shorter entitlement), and the unequal treatment cannot be justified.
The judgment emphasised that the shorter leave available to adoptive and commissioning parents reduces the role they can play in nurturing and establishing attachment, and allocating a shorter period to those parents implicitly treats their caregiving obligations as less onerous, which was unfounded.
The Court therefore confirmed the High Court’s declaration that the impugned provisions are inconsistent with sections 9 (equality) and 10 (dignity) of the Constitution to the extent they unfairly discriminate as to the length of parental leave and unemployment benefits.
- Age limit for adoption leave
The Commission for Gender Equality challenged the BCEA and UIF provisions that limit adoption leave and related benefits to adoptive parents of children below two years of age, arguing there is no legitimate governmental purpose for distinguishing between parents who adopt children younger than two and those who adopt older children, and that older adopted children may have equal or greater needs for time and support on placement.
The High Court had declined to strike down the two-year cap, and the Commission appealed this.
The Constitutional Court found that the age cap differentiates between categories. The Court also found that the Minister did not justify why a two-year cap is reasonable or why another parameter would be unsuitable.
The Court observed that the purposes and demands of adoptive care can differ from biological birth-related leave, and adoptive parents – including those adopting older children – often face significant integration and bonding needs that may justify parental leave irrespective of the child’s age.
The Court concluded it is not clear what a reasonable cap would be, and the matter is best left for Parliament to determine. Because the age cap’s differentiation could not be justified, the two-year restriction was declared invalid to the extent it limited leave and UIF benefits to adopted children under two.
Interim relief granted
The Court suspended the declarations of invalidity for 36 months to give Parliament time to enact remedial legislation. Pending remedial legislation, the Court provided an interim reading-in of amendments to the BCEA to cure the inequality in parental leave.
Universal parental leave
The Court ordered that the BCEA’s parental-leave provisions shall be read to extend parental leave beyond birth mothers to other parents (adoptive and commissioning) such that an employee who is a single parent, or the only employed party in a parental relationship, is entitled to at least four consecutive months’ parental leave.
The read-in text appears in the order and replaces the prior maternity/parental wording so that the protection and entitlement extend to parents other than birth mothers.
Leave sharing
The Court’s interim reading-in provides that where both parties to a parental relationship are employed, they are entitled in the aggregate to four months and 10 days’ parental leave (the extra 10 days reflecting the existing 10-day parental provision), inclusive of any parental leave taken under the existing subsections.
The reading-in permits the parties to agree on how to take the leave (concurrently, consecutively, or partly both). If they cannot agree, the remainder is to be apportioned so that each parent’s total leave is as close as possible to half of four months and 10 days, and the balance must be completed within four months from the birth (or from the applicable date in the case of adoption or surrogacy).
Adoption age cap removed
The Court declared that section 25B(1) of the BCEA and section 27(1)(c) of the UIF Act are invalid to the extent they limit adoption leave and related UIF benefits to the case where the adopted child is below the age of two years.
The Court left the precise policy choice about whether, and at what age, to impose a cap to Parliament to determine in remedial legislation.
Pregnancy and post-birth leave
The Court retained the mother’s entitlement not to work for six weeks after birth unless certified fit by a medical practitioner or midwife. It also preserved the ability of a female employee to commence leave up to four weeks before expected birth or earlier if medically necessary. These periods are included in total parental leave allocation.
The read-in substitutes the terms to ensure that, where appropriate, the terms “maternity” and related wording are read as “parental” while protecting medical recovery time.
Single employed parent
Where only one of the parents in a parental relationship is employed, that employed parent is entitled to the full parental leave under the interim reading-in. This was expressly ordered: a single employed parent (or the only employed party in the parental relationship) is entitled to at least four consecutive months’ parental leave.
Notification requirements
The judgment’s interim reading-in keeps the statutory notification obligations in the BCEA framework.
For maternity/parental leave, employees must notify their employers in writing of the intended commencement and return dates at least four weeks before commencement (or as soon as reasonably practicable if not possible).
For commissioning parental (surrogacy) leave, the read-in preserves the requirement that notification must be given at least one month before the child’s expected birth (or as soon as reasonably practicable).
The order therefore maintains and adapts the notification requirements consistent with the new parental-leave wording.
Adoption and surrogacy
The Court’s reading-in amends sections dealing with adoption (25B) and commissioning parental leave (25C) so that an adoptive parent and commissioning parents are entitled to the parental leave prescribed in section 25(1).
The read-in provides that where two adoptive parents are involved, each shall be entitled in the aggregate to four months and 10 days’ leave, shared as agreed or equally.
The read-in also clarifies that adoption leave begins on the adoption order date or when the child is placed with an adoptive parent by court order. Commissioning parental leave starts on the child’s birth via surrogacy, with the two commissioning parents also entitled to four months and 10 days, shared similarly.
UIF benefits
The Court declined to make an interim reading-in of the corresponding UIF Act provisions, explaining that such a remedy is more complex and could have substantial financial implications because the UIF benefit calculation and funding mechanism differ from the BCEA’s entitlements.
The Court noted the added complexity and the need for the legislature to decide how UIF benefits should be conferred in a non-discriminatory manner. It therefore left the design of UIF benefits to Parliament but directed that, not later than six months before the expiry of the 36-month suspension, the Minister must report to the Registrar whether remedial legislation has been enacted and, if not, when it is expected to be brought into operation.
The Court also provided for a procedure for parties to apply for supplementary relief if the remedial legislation is not enacted timeously.
Your article’s heading is “Employers must update leave policies after landmark ConCourt ruling”. Why is that the heading? Is your opinion that employers are obliged to implement this change with immediate effect? If so, I find your advice to be extremely poor.
Your own article states that Parliament has 36 months to amend the legislation, so why on earth would an employer impliment this change now?
I do hope you will issue a further notification to employers that your heading was misleading.
As stated by Cliffe Dekker Hofmeyr, the reading-in provisions by the Constitutional Court take effect immediately. In their commentary on the judgment, Fairbridges Attorneys also state that Court’s reading-in governs immediately: https://fwblaw.co.za/parental-leave-rewritten-by-the-constitutional-court-what-employers-must-do-now/
I’m on the fence with this. As much as I appreciate present father’s to be given rights I don’t see how sharing 4 months between the parties is beneficial to mothers who give birth.
As a woman who has given birth it took me 4 months to fully recover from my C-section birth.
Also I foresee bitter father’s using this against their partners in the futures to honestly spite the mother. Taking 2 months leave and not even want to be with the child.
Let’s see how it plays out but this is my personal take