When you finally relay your good news of pregnancy to your employer you should receive a joyous response with best wishes. Unfortunately this is often not the case and instead there are feelings of resentment. If you are pregnant in the workplace, take solace in knowing that your rights are protected. The Basic Conditions of Employment Act and the Labour Relations Act both provide adequate protection and regulate a pregnant woman’s position in the workplace.

There is no duty on a woman to disclose that she is pregnant according to Mashava v Cuzen & Woods Attorneys where a candidate attorney failed to disclose she was pregnant when applying for the position. The court held that there was no deceit by the employee and she was under no obligation to disclose such information.

A pregnant woman need only comply with the terms and conditions of maternity leave in any law, collective agreement or contract of employment, neither of which can provide any less rights than provided for in the Basic Conditions of Employment Act (BCEA).

In terms of section 25 of the BCEA a pregnant employee is entitled to 4 (four) months unpaid maternity leave. Maternity leave can be taken at any time from 4 (four) weeks prior to the expected date of birth and she may not return to work 6 (six) weeks after the birth; unless a medical practitioner or midwife advises otherwise. Although maternity leave is unpaid, a pregnant woman can claim UIF benefits from the Department of Labour and she can submit her claim forms at least 8 (eight) weeks prior to commencing her maternity leave.

A woman who has taken maternity leave is protected from dismissal based on the following grounds. Section 186(1)(c) of the Labour Relations Act includes under the definition of a dismissal, when an employer refuses to allow an employee to resume to work after she has taken maternity leave in terms of any law, collective agreement or contract of employment. Employers often use continuity as the reason for dismissal and accordingly section 186(1)(c) was included to prevent employers from relying on absence from work as a ground to dismiss an employee returning from maternity leave.

If a dismissal in terms of section 186(1)(c) is proven, the employee may also claim that such dismissal was automatically unfair in terms of section 187. The onus will then rest on the employer to justify the dismissal. The maximum amount of compensation which can be claimed under an automatically unfair dismissal is 24 months.

A dismissal is automatically unfair if the reason for dismissal is the employee’s pregnancy, intended pregnancy or any reason related to her pregnancy. The purpose for this provision is to ensure that women are not disadvantaged merely for being a child-bearer. She cannot however rely on this if there is no casual link between the dismissal and pregnancy. An employee can be dismissed for other reasons such as negligence while she was pregnant. In Wardlaw v Supreme Holdings, the employee attempted to use pregnancy as the reason for which the employer had dismissed her, however the court found that the real reason for dismissal was misconduct and therefore she had no claim for an automatically unfair dismissal.

In light of the above, should a pregnant woman take maternity leave in terms of any law, collective agreement or contract of employment with the required notice and she is dismissed for a reason relating to pregnancy, such dismissal will be an automatically unfair dismissal and she will be entitled to claim up to 24 (twenty four) months compensation.

Furthermore, although the BCEA provides for unpaid maternity benefits, nothing prevents an employer from providing their pregnant employees with paid maternity leave.

We hope the above is of interest to you.

Written and prepared by Lauren Hastie, Bouwer Kobeli Morabe Attorneys

Please do not hesitate to contact us on +27 11 788-0083 should you have any further enquiries or email enquiries@bkm.co.za.