Labour legislation provides substantial protections for pregnant employees. 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) together provide a far reaching and comprehensive set of rights for pregnant employees. These rights cover the employee from the day she falls pregnant until well after the birth of the child.

The Constitution of SA

Sections 9(3) and 9(4) of the Constitution of SA provide that no person may be discriminated against or dismissed on account of pregnancy.

The EEA

Section 6 of the EEA reiterates the Constitution’s prohibition against discrimination on the grounds of pregnancy.

The UIA

Sections 34 and 37 of the UIA provide for the payment to the employee by the Unemployment Insurance Fund (UIF) of maternity benefits during a period of maternity leave.

The BCEA

• Section 25 of the BCEA requires employers to give pregnant employees at least four months’ unpaid maternity leave. This leave would normally commence four weeks before the expected date of birth but may start earlier if a medical practitioner or midwife requires it.
• The employer may not allow or require the employee to restart work before 6 weeks after the birth of the baby unless a medical practitioner or midwife certifies that she is fit to do so.
• An employee who miscarries a child during the third trimester or who bears a stillborn child is entitled to six weeks’ maternity leave.
• According to section 26 of the BCEA no employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or to the health of her child.

During an employee’s pregnancy (except while on maternity leave) and for a period of six months after the birth of her child the employer must offer her suitable alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment if –
(a) the employee is required to perform night work or her work poses a danger to the safety or health of the employee or baby and
(b) it is practicable for the employer to do so.

Section 27(2) of the BCEA entitles an employee to a total of three paid days per annum family responsibility leave in the event of the birth or illness of the employee’s child. This only applies to an employee –

(a) who has been in the employer’s employ for more than four months and
(b) who works at least four days per week.

The Cod of Good Practice on the protection of employees during pregnancy and after the birth of a child

The Code, issued in terms of the BCEA, is aimed at further protecting pregnant and post-pregnant employees as well as at protecting the employee’s newborn child.

The Code obliges employers to:

• In co-operation with employee elected representatives, identify and assess hazards to the health and safety of their employees and, in particular, risks to pregnant or breast-feeding employees within the workplace
• Implement appropriate measures to eliminate or control hazards, and, in particular, measures to protect pregnant or breast-feeding employees
• Supply employees with information and training regarding risks to their health and safety and measures for eliminating and minimising such risks, and in particular, as this pertains to pregnant or breast-feeding employees
• Maintain a list of jobs not involving risk to which pregnant or breast-feeding employees could be transferred
• 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.

The Code goes into fine detail as to the employer’s duty towards pregnant and breast-feeding employees and I will look at these details in next week’s article.

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.

To book for our 27 August 2013 seminar on Labour Law Amendments Being Approved by Parliament please contact Ronni on ronni@labourlawadvice.co.za  or 0845217492.