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The New Law on Parental Leave – A Simple Summary for Employers and Employees


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'The crux of the case is about unequal treatment of persons.' (Extract from judgment below)


The recent High Court judgment which declared unconstitutional differences between maternity, paternity, parental, adoption and surrogacy leave has received a lot of media attention, much of it focusing on the reasons for the decision - but what has actually changed on a practical level for employers and their employees?


In summary, the Court has given Parliament two years to remedy those sections of two Acts – the BCEA or Basic Conditions of Employment Act and the UIF or Unemployment Insurance Fund - that discriminate unfairly between mothers and fathers and between different sets of parents on the basis of whether a child was born of the mother, conceived by surrogacy or adopted.


Employers and employees – what you need to know


The matter now goes to the Constitutional Court for confirmation of the declaration of invalidity but in the interim, the Court’s order is that '…all parents of whatever stripe, enjoy 4 consecutive months of parental leave, collectively. In other words, each pair of parents of a qualifying child shall share the 4 months leave as they elect.'


To break that down, all parents (regardless of gender or category) are now entitled to at least four consecutive months’ leave - what until now has been described in the BCEA as 'maternity leave'. 


To break that down simply:


  • Single parents of any gender are now entitled to the full four months’ leave. 

  • A pair of parents are entitled to the same leave, but they must share it between them. They can choose how to take the leave – either one of them can take the whole period or they can take turns taking leave. Both parents’ employers must, before the child’s birth, be notified in writing of the parents’ decision and of the periods to be taken by each parent.

  • Adoptive parents are entitled to the same leave when adopting children under two years of age.

  • Surrogacy – the same leave is now available to a commissioning parent or parents (a 'commissioning parent' is a person who enters into a surrogate motherhood agreement with a surrogate mother).


If it’s unpaid leave, a UIF claim may help


The BCEA provides job security by obliging employers to grant parental leave rather than lay off new parents but it does not force employers to make it paid leave. It will be unpaid unless your particular contract of employment specifies that it will be paid.


That’s where the UIF comes in, with its provision of 'maternity benefit' claims. These are now available to all qualifying parents who are contributors to UIF.


Employers - take advice now on how to update your leave policies to comply with these new provisions. 

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