Section 25 of the Basic Conditions of Employment Act deals with maternity leave and states that “an employee” is entitled to at least four (4) consecutive months’ (unpaid) maternity leave. Although the section refers to “an employee”, it is clear that it relates to female employees. The section makes reference to “her” and presumably affords this right of maternity leave to only female employees. The maternity leave is of course unpaid and the employee is allowed to claim Unemployment Insurance subject to the provisions of the Unemployment Insurance Act. It is the discretion of the employer whether or not the employer wants to pay an employee during maternity leave.

A recent Labour Court decision by Gush J threw a spanner in the works. In MIA v State Information Technology Agency (Pty) Ltd [2015] JOL 33060 (LC), the Labour Court was confronted with the question whether a male employee is also entitled to maternity leave as per the provisions of the Basic Conditions of Employment Act. The Applicant, being a male employee, entered into a civil union with his spouse (also a male) in accordance with the provisions of the Civil Union Act 17 of 2006. The Applicant and his spouse then entered into a surrogacy agreement with a surrogate mother in accordance with Section 292 of the Children’s Act. The Applicant applied for maternity leave of four (4) months as per the provisions of the Basic Conditions of Employment Act. It was refused and he was granted two months leave in accordance with a policy that the employer had for employees who adopted children under the age of 24 months. The Applicant then referred an unfair discrimination dispute to the Labour Court and claimed that his employer’s refusal to grant him maternity leave constitutes unfair discrimination on the grounds of gender, sex, family responsibility and sexual orientation as provided for in the Section 61 of the Employment Equity Act. The employee was seeking an order that the employer refrain from discriminating against him and “other similarly placed applicants” and to accord due recognition of their rights. The employee was also seeking damages and payment for the unpaid leave he was required to take to care for his child.

In the MIA case, the Applicant and his spouse were the parents of the child born to the surrogate. The child was born from the surrogate mother as a result of artificial fertilisation using gametes from at least one of the same sex parents (i.e. the Applicant and his spouse). The Applicant was seeking four (4) months’ paid maternity leave in view of the employer’s policy that provides for “paid maternity leave”.

The employer opposed the Applicant’s claim on the basis that maternity leave was only a right to be exercised by female employees who (physically) gave birth to a child. The employer emphasised that “pregnancy and childbirth create an undeniable psychological effect that prevents biological mothers from working during portions of the pregnancy and during the post partum period.”

The court was not satisfied with the Employer’s argument and ruled that the such argument “ignores the fact that the right to maternity leave as created in the Basic Conditions of Employment Act in the current circumstances is an entitlement not linked solely to the welfare and health of the child’s mother but must of necessity be interpreted to and take into account the best interests of the child.” The court went further to state that a failure to do so, would be to ignore the Bill of Rights in the Constitution and the Children’s Act.

The Court then ruled that, given the circumstances, that “there is no reason why an employee in the position of the applicant should not be entitled to maternity leave and equally no reason why such maternity leave should not be for the same duration as the maternity leave to which a natural mother is entitled”.

The Court also made the comment that it will be necessary to amend the provisions of the Basic Conditions of Employment Act in so far as maternity leave is concerned.

The Court refused to award damages to the Applicant in view of the Applicant’s failure to lead evidence sufficiently to justify an order for damages. The Court ordered the Employer to pay the applicant a sum equivalent to two months remuneration, keeping in mind that the Applicant did receive two months “leave” in terms of the Employer’s policy dealing with employees who adopt children younger than 24 months.

This Labour Court decision by Gush J is of significant interest to employers in South Africa and employers should take note of it in order to avoid claims for discrimination in future.