Earlier today, the Constitutional Court made the final call on the groundbreaking changes to parental leave, triggered by the 2023 judgment of Van Wyk and Others v Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213.

Our employment law department previously covered the High Court judgment and its implications: https://www.wylie.co.za/Articles/Read/1405/GROUNDBREAKING-CHANGES-TO-PARENTAL-LEAVE-PROVISIONS-

The Constitutional Court aligned with the Gauteng High Court which found that there was no justification for the provisions of the Basic Conditions of Employment Act (“BCEA”) and corresponding provisions of the Unemployment Insurance Act (“UIF Act”) to distinguish one ‘parent-employee’ from another.

The Apex Court found that these provisions, as they stand, are unconstitutional as they unfairly discriminate between different classes of parents.  To remedy the constitutional defects, the Apex Court ruled that:

1. the current allowance of four months leave (for biological mothers) should be retained.
2. Leave should not be restricted to mothers but should extend to fathers as well. Where only one of the parents is employed, such parent should be entitled to the full parental leave.
3. In the case of a biological birth, the mother must have preference in respect of the time currently allocated as preparation for and recovery from birth. Subject to this qualification, the parents should be entitled to share the available days as they choose.
4. In the event of disagreement, the leave contemplated in the relevant section shall be apportioned between the parents in such a way that each parent’s total parental leave is as close as possible to half of four months and 10 days.
5. There should be a requirement that a father who wishes to avail himself for paternity leave qualifies as one who has assumed parental rights and responsibilities over the child as contemplated in the Children’s Act.
6. The additional 10 days leave provided by the “parental leave” provision of the BCEA should also be allowed, giving a total of four months and 10 days leave to be shared between the parents.

Parliament has been given three years to amend the relevant legislation to ensure that the provisions pass constitutional muster.  In the interim period, the Constitutional Court provided the readings that are to be applied to the impugned provisions of the applicable legislation.

This judgment has significant impacts for both employers and employees.  It is crucial that employers review their policies relating to parental leave and ensure that the policies are amended to ensure that the policies do not fall short of the constitutional standard.  Employers will have to communicate the changes made to policies to their employees and ensure that employees are aware of their reporting obligations in circumstances when they want to share the parental leave.

For assistance with the drafting and reviewing of policies, please contact Deirdre Venter and Unathi Dlamini.