Unfair Discrimination – Pregnancy

Visibly pregnant woman

Section 9(3) and (4) of the Constitution of South Africa prohibits any person to discriminate against any other person. This means that every person has a constitutional right not to be discriminated against. Section 187(e) of the Labour Relations Act [LRA] as well as the Employment Equity Act [EEA] in section 6, prohibits unfair discrimination. One can distinguish between direct and indirect discrimination. Direct discrimination is intentional and means that an adverse action is taken against a person because the posses a specific characteristic as listed in section 9(3) and (4). For example: The lady applying for the position is pregnant, therefore she is not appointed.

Indirect discrimination is when seemingly objectives are placed to exclude certain groups of persons. For example: Only people who studied at the University of Pretoria between 1984 and 1990 will qualify for an interview. It is important to remember that indirect discrimination may be intentional or unintentional.[1] The employer’s motive has no bearing on whether indirect discrimination has taken place, and the employee needs not to prove that he has been prejudiced or suffered loss.[2]

Not all employers will jump of joy when they are informed by an employee that she is pregnant. Most probably the employer will have a negative reaction. Despite the employers feelings, an employee is in entitled to 4 (four) months unpaid maternity leave as stated in section 25 of the Basic Conditions of Employment Act (BCEA). The maternity leave may be taken at any time from 4 (four) weeks prior to the expected date of birth of the child (unless a medical practitioner or a midwife advices otherwise) and she may not return to work for 6 (six) weeks after the birth of her child, unless (same as above, unless a medical practitioner or a midwife advices otherwise).

A pregnant lady can claim UIF maternity benefits from the Department of Labour and she can submit her claim forms at least 8 (eight) weeks prior to commencing her maternity leave. If an employee is discriminated against, because of her pregnancy, this type of discrimination will fall under automatically unfair discrimination [sec 187(e) of the LRA] and the employee can get up to 24 (twenty four) months’ salary.

Mother and child holding hands

Maternity leave

  • If you’re pregnant, you can take up to 4 continuous months of maternity leave.
  • You can start your maternity leave any time from 4 weeks before the expected date of birth or on a date a doctor/midwife says is necessary for your health or that of your unborn child. 
  • You may work for 6 weeks after the birth of your child unless a doctor or midwife has advised you not to.
  • A pregnant or breastfeeding female worker isn’t allowed to perform work that’s dangerous to her or her child.

Your rights as a working breastfeeding mom (click to read)

  • When you return to work from maternity leave, you can ask your manager or supervisor for space where you can breastfeed or express milk.
  • According to the Code of Good Practice on the protection of employees during pregnancy and after the birth of a child, arrangements should be made for you to have 2 breaks of 30 minutes per day for breastfeeding or expressing milk. This should be arranged for every working day for the first 6 months of your child’s life.
  • A toilet isn’t a safe or hygienic space to express milk. Try to get a clean and private space for you to express milk or breastfeed.

Paternity leave (click to read)

  • Fathers are entitled to 10 consecutive days paid paternity leave.
  • This is applicable to fathers who adopt a child under 2 years old. This leave can be taken from the date that the adoption order is given or when the child is placed in the care of the adoptive parents.
  • The employer should be notified in writing when the leave will be taken unless you’re unable to do so.

For more information:
https://www.westerncape.gov.za/general-publication/basic-conditions-employment-act
https://www.labourguide.co.za/most-recent/1001-unfair-discrimination-pregnancy
https://mywage.co.za/decent-work/maternity-and-work/maternity-leave