All parents are entitled to four months parental leave, rules High Court

Newsflash! All parents are entitled to four months parental leave, rules high court

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Sections of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund Act have been declared unconstitutional because, when it comes to “maternity leave”, they unfairly discriminate against mothers and fathers, surrogate parents, and those who adopt children.

The matter was brought to court by a Polokwane couple, Werner and Ika van Wyk, Sonke Gender Justice, and the Commission for Gender Equality, with several other organisations acting as amicus curiae. The sole respondent was the Minister of Labour, the custodian of the BCEA.

Johannesburg High Court Judge Roland Sutherland suspended the declaration of invalidity for two years to give Parliament time to “cure the defects”. However, in the meantime, Judge Sutherland has ruled that all parents are entitled to four months “parental leave” and, if they contribute, to UIF benefits.

The judgement takes effect immediately and will remain in force until such a time as it may be taken on appeal. In that event, the ruling will be suspended, and the provisions put on hold until it is confirmed by the Constitutional Court.

What does this mean:

  • Parents in a natural birth arrangement can elect which parent would take the whole four-month parental leave period, or could freely allocate that four-month period between them; and
  • Parents adopting a child younger than two years and parents in a commissioning parent arrangement would be entitled to the same leave regime as that now applicable to parents to a natural birth.

In section 25(1) of the BCEA, the provisions are deleted and submitted with:

‘An employee who is a single parent is entitled, and employees, who are a pair of parents, are collectively entitled, to at least four consecutive months’ parental leave, which, in case of a pair of parents, be taken in accordance with their election, as follows:

  • One or other parent shall take the whole of the period, or
  • Each parent shall take turns at taking the leave.
  • Both employers must be notified prior to the date of birth in writing of the election and if sharded arrangement is chosen, the period or periods to be taken by each of the parents must be stipulated.


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