The van Wyk case and Parental Leave Entitlements

Some parents will no longer be more equal than others.

Background

South African employment law has often led the charge on encompassing our Constitution and giving effect to our Bill of Rights. In October 2023, further and significant strides were made in achieving this aim by ensuring a fairer and more equal treatment for all parents.

The High Court judgment in Werner van Wyk and others v Minister of Employment and Labour (“van Wyk case”) has confirmed the unconstitutionality of certain sections of the Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Unemployment Insurance Fund Act 63 of 2001 (UIF Act) relating to maternity, parental, adoption and commissioning parental leave entitlements, due to the sections infringing the right to equality and dignity as provided for in the Constitution.

The heart of the van Wyk case is the unfair and discriminatory application of such parental leave provisions based on the type of parenthood whether it be of a biological child, adoptive child, or a child born through surrogacy.

The first unfair discrimination aspect addressed was the provision of a ten-week period of leave for commissioning and adoptive parents rather than a 16 week period of leave which is afforded to a birth mother. The Court recognised that while a birth mother needs time for physiological recovery, there was no fair reason to deny other parents the additional six weeks of leave, simply due to them not requiring such recovery period.

The second unfair discrimination aspect addressed was the mere ten days of parental leave afforded to the other parent who is not on maternity, commissioning or adoptive leave. The judgment highlighted the unequal status which has been afforded to the second parent and the perceived “ancillary” role such parent plays.

The application was opposed by the Minister of Employment and Labour on the basis that the current provisions do not violate any constitutional guarantees and that the “free services” of mothers and the roles of fathers should not be interfered with. The Minister further contended that this was not a matter for judicial adjudication but rather one of social policy and resource allocation.

The Court disagreed and ultimately held that sections 25, 25A – 25C of the BCEA are unconstitutional and that they unfairly discriminate between parents and against one set of parents who have a physiological birth and those who do not. The Court has given the Legislature two years in which to rectify such provisions and in the interim, has ordered that parents, collectively, have four months’ parental leave. The parents shall have an election on whether one parent shall take the whole of the period of leave or whether to take turns.

Practical implications

There is no doubt that his is a landmark judgment and is a success for all parents,  being more reflective of a modern and equal society. It has however left open a number of practical considerations.

In particular, the judgment does not state how parents will be able to take parental leave simultaneously, especially at the time of birth or adoption and if it is possible to do so, whether this has the effect of shortening the four month period. The provision remains, correctly, that a birthing mother may not return to work within six weeks of the birth. Therefore a birthing mother will always, at a minimum, be entitled to one and a half months’ parental leave. How, in these circumstances now will the other parent take parental leave during this time, if at all?

Another big question which will undoubtedly arise, is what happens when parents cannot agree on the apportionment (if any) of the parental leave.

Next steps for employers

While we await the Legislature’s amendments, employers should proactively review their maternity and parental leave policies to ensure that they provide for a process where parents can elect to share parental leave and provide for mechanisms which address some of the more obvious gaps.

In addition, where employers have elected to pay in whole or in part for maternity leave, this may now need to be extended to any parent. Given that many more parents will be going on parental leave and could be out of office for longer periods, employers should ensure that their work back arrangements are enforceable and they may need to look at implementing a policy on how employees’ duties are covered while on parental leave.

The way forward

The van Wyk case marks a significant shift towards equal parenting responsibilities and rights and recognising a diverse and modern family structure. It urges employers to revisit their policies, in preparation for a future where parental leave goes above historical gender norms.

This judgment has provided a foundation for much needed labour legislative reform, and it is now up to the Legislature, and employers, to nurture a reality where parental responsibilities and rights are equitably available and their respective choices are respected.