The sales manager you employed just over three weeks ago announces she is pregnant and is going to take maternity leave for four months. You have only recently implemented your revised sales strategy, and this news could not come at a more inopportune time for your business. Worse still, a month after she has her baby and returns to work, she declares she is resigning. What recourse do you have? Questions surrounding pregnancy, work and maternity leave can be confounding. Pregnant employees and employees on maternity leave have rights given them by legislation. But what are those rights, and what are an employer’s obligations?
First off, says Sean Snyman, a founder member of Labournet Holdings, it’s important to remember that the law protects women against unfair discrimination arising from any form of prejudice. “An employer may not ask a candidate who applies for a job if she is pregnant, nor if she is planning to start a family at any stage. If you do, she could argue that you are discriminating against her.
“Equally, she is in no way obliged to disclose her pregnancy when applying for a position. The bottom line is that it has nothing to do with the candidate’s ability to meet the requirements of the position. And nothing stops her from resigning once she has returned to work after taking maternity leave. She has rights regardless.”
The Basic Conditions of Employment Act stipulates that an employee is entitled to four months unpaid maternity leave. All that is required is a notification by the employee that she is pregnant, accompanied by a doctor’s certificate.
This leave should start four weeks before the expected date of birth, or when a doctor or midwife certifies that leave is necessary for the health of the mother or child. An employee must notify her employer in writing of the date on which she wants to start maternity leave. She may not work for six weeks after delivery, unless she is declared fit to do so.
An employee who has a miscarriage during the last three months of pregnancy or who bears a stillborn child is also entitled to six weeks maternity leave, whether or not she has started maternity leave at the time.
“Companies in South Africa are not obliged by law to provide paid maternity leave,” says Snyman. A female employee who works for a company that does not offer maternity benefits can claim from the Maternity Benefit Fund if she has been contributing to the Unemployment Insurance Fund (UIF).
Are there different criteria for small-to-medium businesses and large companies? No, says Snyman. The same laws apply across the board, regardless of the size of the business. “But this is where the benefits of working for a large company come in. Bigger organisations can afford to offer their employees paid maternity leave,” he adds. “Also important is that length of service is irrelevant – all employees have the same rights from the moment they start working for a company.”
An employer who pays maternity leave does have some rights, however. Paid maternity leave is a benefit, and the company is within its rights to conclude a contract with the employee stating that if she does not return to work for at least one year following her confinement, she will be obliged to return the salary she earned during her maternity leave.
South Africa has no paternity leave provisions in place, but workers who have been employed at a company for longer than four months may take three days’ paid family responsibility leave during each year of employment, on request, when the worker’s child is born or sick, or for the death of the worker’s spouse or life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling. The employer may want proof that this leave was needed. “It’s important to ensure your company has a maternity leave policy in place, and that employees are familiar with it,” Snyman says. “This will help to avoid any unnecessary murkiness around these potentially inflammatory issues.”
| Creating a maternity leave policy
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