Breaking the Mold: Equal Parental Leave for All
Case: Van Wyk and Others v Minister of Employment and Labour and Others (Case No. 2022-017842, Gauteng High Court) (25 October 2023)
Background:
The recent High Court case involving the Van Wyks and their demand for equal parental leave has been widely shared and commented upon. Here we give you all the details in plain language and help you make sense of the rights of parents and the obligations of employers going forward.
The case was brought by the parents of a child, supported by Sonke Gender Justice, an NGO, and the Commission for Gender Equality, a Chapter 9 institution, against the Minister of Employment and Labour as the custodian of the BCEA (the Basic Conditions of Employment Act No. 75 of 1997, as amended).
This case concerns the provisions of sections 25, 25A, 25B and 25C of the BCEA which provide for maternity leave, parental leave, adoption leave, and commissioning parental leave in the case of a surrogate motherhood agreement. The Van Wyk’s attacked the constitutionality of these sections in terms of sections 9 and 10 of the Constitution which deal with the right to equality and dignity.
The law as it stands:
Section 25 provides for the right to at least four consecutive months’ maternity leave for a birth-mother. In terms of section 25A a father is entitled to 10 days’ parental leave from the date of birth of the child. Section 25B deals with an adopted child under the age of two. The section recognises both adoptive parents – one parent is entitled to 10 consecutive weeks leave and the other to the 10 days parental leave referred to in section 25A. The parents can choose which parent will take the 10 weeks’ leave and which the 10 days’ leave. The third category of child is one born via a surrogate mother. The parents are referred to as the ‘commissioning parents’ in the BCEA. Section 25C provides for entitlements that are identical to those provided for adoptive parents, who again may choose which of them qualifies for which type of leave (10 weeks or 10 days).
The High Court:
The Court dealt firstly with the distinction between the four months’ maternity leave to which birth-mothers are entitled, and the ten weeks’ leave entitlement granted in the case of adoptive or commissioning parents. The Court found that there was no legitimate ground for the distinction, which was discriminatory. It found that all three categories of mothers should have the same entitlement to maternity leave.
The Court then turned to the issue of gender, and found that the distinction between the birth-mother and father of a child in sections 25 and 25A was discriminatory (the same discrimination is not found in the treatment of the parents of an adopted or surrogate child, and in fact there is no reference to gender at all in sections 25B and 25C, thus catering for the inclusion of same-sex parents.) The Court found that consigning a mother to the role of primary care-giver impaired her dignity and was unconstitutional on the ground of gender. The Court found that, although it may generally be true that mothers bear an unequal share of the burden of child rearing in our society as compared to the burden borne by fathers, it could not be said that it would be fair to discriminate between women and men on that basis.
The Court found that sections 25, 25A, 25B and 25 C and the corresponding sections of the Unemployment Insurance Fund Act No. 63 of 2001 (the UIF Act) were unconstitutional. [Addressing the issue of the two-year age cap on leave for adoptive parents, the Court found that since the relevant sections of the BCEA were intended to address the needs for nurturing and early-childhood care, the age limit was not discriminatory.]
The way forward:
As regards the way forward, the High Court stated that Parliament needed to work to eliminate the inequalities. The court suspended the declaration of invalidity for two years from the date of the judgment to allow Parliament to cure the defects. The finding of invalidity on the grounds of unconstitutionality is subject to final confirmation by the Constitutional Court.
In the interim, the Court ordered that section 25 be read as follows:
Section 25(1):
An employee who is a single parent is entitled, and employees who are a pair of parents, are collectively entitled, to at least four consecutive months’ parental leave, which, in the case of a pair of parents, may be taken in accordance with their election, as follows:
-One or other parent shall take the whole of the period, or
-Each parent shall take turns at taking the leave
-Both employers must be notified prior to the date of birth in writing of the election and if a
shared arrangement is chosen, the period or periods to be taken by each of the parents must be stipulated
Section 25A was to be read in accordance with the changes to section 25(1), and sections 25B and 25C were to be read to provide for the same parental leave conditions as provided for in section 25(1). The provisions of the UIF Act were to be amended accordingly to allow either parent to claim unemployment benefits.
Even this interim reading must be confirmed by the Constitutional Court, and the ConCourt may change the interim reading of the relevant sections. The interim reading will then apply from the date specified by the ConCourt (or the date of the judgment) until the date the amended laws come into effect. This means that until we hear from the ConCourt, there is no obligation on employers to amend their parental leave policies, but it may be a good idea to anticipate the changes.
Key takeaways
All parents, regardless of gender or birthing status, are likely to have the right to share in the four months of parental leave.
The ConCourt needs to confirm the finding of the High Court as well as the interim reading of the unconstitutional sections, while Parliament needs to work to amend the law.
The amendment will not allow both parents to take four months of consecutive leave – the parents will have the right to decide who will take the four months’ parental leave, or how it will be shared between them.
Both parents will qualify for UIF payments in respect of the period of leave taken by each.
The judgment recognises fact that both parents may play an integral part in the nurturing of young children, and acknowledges the changing needs of a society where it is not necessarily the male partner who is the main breadwinner, and nor is it necessarily the female who is the primary care-giver.
