I explained in my last article that pregnant employees are strongly protected under South African law. There are in fact no fewer than six pieces of legislation that requires employers to treat pregnant and post-pregnant employees with the greatest of care:

• the Constitution of South Africa
• the Employment Equity Act (EEA)
• the Unemployment Insurance Act (UIA)
• the Basic Conditions of Employment Act (BCEA)
• the Labour Relations Act (LRA) and
• the Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child (The Code)

My last article dealt with the first five pieces of legislation and touched on the sixth one. I explained that the Constitution of South Africa gave birth of the other five statutes. Therefore, with the Constitution as the working mother and the other five statutes as the children, employers need to treat all six laws with the greatest of respect.

The Code Of Good Practice On The Protection Of Employees During Pregnancy And After The Birth Of A Child (The Code)

The Code, issued in terms of the BCEA, is aimed at protecting pregnant and post-pregnant employees as well as at protecting the employee’s newborn child. As mentioned, the Code obliges employers to:

• Encourage women employees to inform the employer of their pregnancy as early as possible so as to ensure that the employer can assess risks and deal with them

• Evaluate the situation of each employee who has informed the employer that she is pregnant.

• assess risks to the health and safety of pregnant or breast-feeding employees within the workplace

• Implement appropriate measures to protect pregnant or breast-feeding employees

• Supply pregnant or breast-feeding employees with information and training regarding risks to their health and safety and measures for eliminating and minimising such risks

• Maintain a list of jobs not involving risk to which pregnant or breast-feeding employees could be transferred.

Aspects Of Pregnancy That May Affect The Work Of The Mother

As a result of pregnancy the employee may not be able to perform her work to her normal level of standard. The reasons for this include:

The debilitating effect of morning sickness can result either in the employee being unable to work early in the day, working at a slower pace or in making errors.

The added weight of the baby and the strain of pregnancy can result in backache. This can be exacerbated by work requiring prolonged standing or sitting and by work involving manual handling. The distraction caused by  backache can affect the quality of the employee’s work.

The pressure of the child on the employee’s bladder often results in the need for more frequent visits to the toilet. This can result in the employee’s work being interrupted and, at times, in its completion being delayed. It could cause inconvenience to her colleagues who may have to help in order to get the work done.

The Code also points out that the employee’s increasing size, weight and discomfort may require changes of protective clothing and changes to the working space allocated to the employee. This may also impair her dexterity, speed of movement and reach.

Pregnancy can affect the employee’s balance particularly in the latter stages. Therefore, work requiring the employee to walk on slippery or wet surfaces or to use stairways can cause accidents and also slow the employee down.

Vibration, extreme temperatures, prolonged exposure to noise, radiation, stress, strenuous work and certain chemicals and gasses can be harmful to both mother and child. In addition to the serious danger these pose to health and safety, employees affected by these hazards will be much more likely to need extra time off work to obtain treatment. This is likely to affect productivity.

Due to the substantial legal protections of pregnant employees employers cannot decide to avoid employing them or to replace them with more productive workers. Instead, employers need to utilise the services of labour law experts to devise and effect detailed strategies for ensuring the health and safety of working mothers and for minimising the effect of motherhood on workplace productivity without breaking the law.

Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za. This article first appeared in The Star.

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