Leave abuse and other potential challenges facing employers following parental rights ruling

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South Africa's apex court confirmed the High Court’s 2023 ruling, declaring several provisions of the Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Unemployment Insurance Act 63 of 2001 (UIA) unconstitutional.

The challenged provisions were found to unfairly discriminate between different categories of parents by creating a hierarchy of parental recognition, favouring birth mothers and marginalising other forms of parenthood.

The Constitutional Court suspended its declaration of invalidity for 36 months to give Parliament time to remedy the constitutional defects in the BCEA and UIA.

However, in the interim, the Court has put the following key measures, among others, in place as a substitute for the impugned provisions:

• Employees who are single parents or the only employed party in a parental relationship shall be entitled to at least four consecutive months’ parental leave.
• A female employee who is expecting the birth of a child may commence parental leave at any time from four weeks before the expected birth date, or on a date certified as necessary by a medical practitioner or midwife and no female employee who has given birth to a child may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so.
• If both parties to a parental relationship are employed, the parties are entitled in the aggregate to four months and 10 days’ parental leave, inclusive of the time allocated to the biological mother for preparation for and recovery from birth (if applicable).
• Subject to the above, parents may agree on how to divide the leave, concurrently or consecutively, or partly concurrently and partly consecutively. If the parties cannot agree on the way the parental leave is to be taken, the leave must be split as equally as possible.

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Potential ramifications

However, there could be unintended consequences, such as the negative implications for birth mothers who may now have to share their parental leave benefit, which was not the case previously.

Careful consideration will also need to be given to how employers will implement and monitor the interim measures at a practical level. Some of the practical implications that employers will need to consider include:

• How to verify the apportionment of leave that has been determined between employed parents to prevent abuse;
• How to confirm that an employee has assumed parental rights and responsibilities over the child and is indeed a ‘party to a parental relationship’ and thus entitled to parental leave; and
• How to appropriately extend any paid leave benefits that may currently be afforded only to female employees or for shorter periods of time, taking into account that some employees may not be eligible for full UIF benefits whilst on parental leave during this interim suspension period.

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This judgment has immediate far-reaching implications for employers and employees across South Africa. Employers will need to immediately update their leave policies, starting with, for example, abolishing references to maternity leave and provisions, which limit parental leave to 10 days and then addressing the practical considerations mentioned above.

Employees who will become parents in the future and are in a parental relationship will also need to discuss how they will apportion the four months and 10 days’ leave entitlement between them.

There will also likely have to be some form of collaboration between different employers where parents in a parental relationship are both employed by different employers. There may even be a need for employers to consider affording additional parental leave to minimise the impact on birth mothers who may now have a lesser period for parental leave or to afford fathers additional days for parental leave.

Other considerations for employers include not infringing on the constitutionally protected privacy rights of partners of their employees in verifying leave arrangements, and further ensuring that the provisions of the Protection of Personal Information Act are not infringed when processing any information belonging to their employees or their employees’ partners.

Managing parental leave in this new progressive era is something that all employers will need to grapple with and hopefully with time, employers may find collaborative ways to implement parental leave in a seamless manner that is in the interests of all parties.