By Kate Collier, Partner, Brett Abraham, Partner, Deon Visagie, Partner, Mbali Nkosi, Senior Associate & Nkosinathi Thema, Associate at Webber Wentzel

A recent High Court judgment has the potential to reshape parental leave rights in South Africa, possibly granting parents more flexibility and equality in sharing caregiving responsibilities.

In a recent discussion, Brett Abraham, partner Webber Wentzel Employment, Kate Collier, partner Webber Wentzel Occupational Health & Safety, Deon Visagie, partner, Webber Wentzel Employment, Mbali Nkosi, senior associate Webber Wentzel Occupational Health & Safety and Nkosinathi Thema, associate Webber Wentzel Pro Bono consider how the High Court judgment is set to reshape parental leave rights in South Africa.

The judgment stems from a public interest law case brought by the Van Wyk family (represented by law firm Webber Wentzel), stating that the current parental leave provisions in the Basic Conditions of Employment Act (BCEA) are discriminatory and unconstitutional. This landmark ruling could pave the way for a more equitable system that recognises the shared responsibilities of parenthood. It also speaks to issues of addressing the underlying inequality within societies as well as addressing intersectional issues such as the gender pay gap, economic justice, and social justice.

Although Mr Van Wyk was willing to be his child's primary caregiver, he was not entitled to the longer period of parental leave under the BCEA provided for mothers as maternity leave and adoption leave for adoptive parents. It is thus evident that the existing parental leave provision in the BCEA does not fully encompass the changing needs and norms of society.

The High Court therefore found that the BCEA's parental leave provisions are inconsistent with the Constitution's provisions on equality and non-discrimination. The Court ruled that the BCEA unfairly discriminates between mothers and fathers, or between one parent and another based on whether a child was born of the mother, conceived by surrogacy, or adopted.

Proposed alternative framework

The High Court proposed an alternative framework for parental leave which maintains that a single parent or two parents, regardless of their birthing status, should be collectively entitled to at least four consecutive months of parental leave. This leave would be taken at the parents' election, with either one parent taking the full period or each parent taking turns taking the leave. Although parental leave rights were amended fairly recently in 2020 to cater for fathers, adoptive parents, and surrogacy commissioning parents, this High Court judgment indicates that further legislative change should be expected. However, the BCEA provisions on maternity leave and parental leave are still in force and will remain so unless and until this order is confirmed by the Constitutional Court.

Impact on employers

From a human-centred perspective, one of the well-known objectives of maternity leave is to bond with and nurture a newborn baby. Providing parents with the agency to choose how to divide their time in line with the gender-neutral approach to caregiving gives effect to greater dignity and equality to those parents who do not have the option to assume that role presently. From an occupational health and safety point, employers would need to:

• consider the impact that this order would have if confirmed in its current form or similar;
• review their parental leave policies and procedures to ensure that they are compliant with the new framework; and
• assess the risks associated with birthing parents returning to work early.

The current risk assessment methodologies and how employers allow birthing parents to return to work would be based on the presumption that a birthing parent would have taken maternity leave for the entire period prescribed, or longer when an employer allows it. However, given that a birthing parent may now elect to return to work sooner, that will require employers to take a differentiated approach based on their workplaces, the hazards in those workplaces, and the factors unique to those returning parents to ensure that they can have their health and safety safeguarded in the workplace. One way of doing this, according to the Occupational Health & Safety Act (OHSA) is for an informed occupational medical practitioner who is fully versed in the specific workplace hazards in that particular environment, to authorise a birthing parent as being ready to resume work-related duties. This process will have a very nuanced approach and not necessarily just a one-size-fits-all rule.

Consequently, every employer has an overarching obligation to ensure that employees are safe when they're at work, which extends to their physical health, their exposure to health hazards, and their mental health. There are guidelines and codes of good practice that need to be followed, and there are indicative documents issued by the International Labour Organisation that should be consulted from the perspective of international best practice.

On the other hand, the possibility for an increase in claims of differentiation, which is often the starting point to any claim of unfair discrimination, may arise, particularly in circumstances where employers offer enhanced parental leave benefits. Employees may turn to the courts or to the Commission for Conciliation, Mediation and Arbitration (CCMA) or another tribunal to vindicate what they believe to be an entitlement to better parental leave benefits, instead of simply doing so by individual or collective bargaining processes. Unfair discrimination cases on this basis are no more laudable than they were before the order was made. To get ahead of this possibility, employers should communicate the consequences of this judgment to their workforce, to dispel any misunderstanding or misinformation.

Where differentiation is on a listed ground, the employer would have to prove on a balance of probabilities that either the discrimination hasn't taken place as alleged or that it is rational and not unfair or otherwise justifiable. Essentially, employers should already start to understand their workplace dynamics against the backdrop of existing entitlements and benefits that are currently in place in their respective organisations. In assessing this, employers should consider, where or to what extent, there are parental leave benefits in contracts of employment, collective or bargaining council agreements, or whether these are simply included as policies or procedures or even practice at the workplace.

There will be circumstances where some employers may already have the financial and operational ability to implement changes akin to those anticipated following the High Court order. Equally, some employers may look at the judgment and determine that the financial and operational costs may be too high to maintain existing benefits. That may result in employers looking at how they offer paid parental leave benefits and the extent to which they require work-back obligations, bearing in mind those would now only presently apply to mothers returning to work and there may be circumstances where an employer will need to consult to seek to amend or change the extent to which these benefits are provided. That's easier said than done when these are contractual entitlements and employers must also bear in mind that even where they can change these, that's going to have an impact on workplace dynamics and talent retention.

Where to from here?

The High Court judgment still needs to be confirmed by the Constitutional Court and this process may take any time between 12 to 18 months, perhaps even longer. There are a few possible outcomes that can be expected which include the Constitutional Court:

• confirming the High Court order as it is;
• proposing an alternative reading to apply while Parliament corrects the constitutional defect (it may take two years to make the necessary changes to the legislation); or
• declining to confirm the High Court's ruling.

The High Court judgment is a significant step forward for equal parental leave rights in South Africa. If confirmed by the Constitutional Court, the judgment will have a profound impact on employers and families across the country.

Listen to a discussion about the impact of this judgment from a public interest, occupational health and safety, and employment law perspective.