Newsletter - August 2005
Rights of pregnant employees.
INTRODUCTION
Female employees have inherited a history of discrimination
and abuse. This has inhibited women’s progress
in the work environment. Pregnancy and childbirth,
a role that is unique to females has to a certain
extent been a barrier to the progress of female employees.
The Employment Equity Act recognizes women as a designated
group for the purposes of Affirmative Action and thus
employers are obliged to provide for the reasonable
needs of pregnant employees. In addition to the gender
rights in terms of the equity provisions in Section
9 of the Constitution of the Republic of South Africa
108 of 1996, section 9 (3) specifically prohibits
the discrimination against any person on the grounds
of pregnancy.
WHAT CONSTITUTES, PROVIDING REASONABLE ACCOMODATION
TO PREGNANT EMPLOYEES?
Employers are obliged to provide for example, a relaxation
of dress codes where uniforms are worn to work, to
take employees back to work in the same job at the
same venue and office after maternity leave.
In terms of item 7 of the Code of Good Practice, applicable
to public servants, the protection of employees during
and after the birth of a child, lists aspects of pregnancy
that may affect work and it contains certain provisions
such as granting rest periods and making toilet facilities
accessible. In terms of section 26 of the Basic Conditions
of Employment Act (BCEA), the employer is obliged
to offer the pregnant employee suitable alternative
employment on terms and conditions that are as favourable
as her present post. An employee is prohibited during
pregnancy or six months after the birth of her child,
to perform work that is dangerous to her or her baby’s
health.
Item 1-4 of the Code of Good Practice lists potential
hazards to pregnant employees such as physical, ergonomic,
chemical (including tobacco smoke), biological (including
hepatitis). Employers have a duty to assess the health
risks to a pregnant employee and her baby. Assessments
should be conducted in a fair and factual basis.
PROHIBITION OF DISCRIMINATION AGAINST PREGNANT WOMEN
Section 6(1) of the Employment Equity Act, prohibits
discrimination against pregnant women including any
medical condition related to pregnancy. Employers
could reasonably accommodate a pregnant employee by
for example disregarding days of absence due to pregnancy
related conditions and by allowing her more rest periods.
Since employers are advised to be more conscious of
abuse of rights by pregnant employees, it is therefore
important that such employees produce a medical certificate
every time they allege to have fallen sick due to
pregnancy related sickness.
Section 187(1) (e) of Labour Relations Act No 66 of
1995 (LRA), states that the dismissal of an employee
on account of her pregnancy, intended pregnancy, or
any reason related to her pregnancy, is automatically
unfair. Dismissal according to the definition of dismissal
in section 186 of the LRA includes the refusal to
allow an employee to resume work after she has taken
maternity leave in terms of any law, collective agreement
or her contract.
MATERNITY LEAVE
In terms of Section 25 of the BCEA, an employee is
entitled to at least four consecutive months’
maternity leave. An employee may commence maternity
leave
| • | at anytime from four weeks before the expected date of birth, unless otherwise agreed; or | ||||
| • | on a date from which a medical practitioner or a midwife certifies that it is necessary, for the employee’s health or that of her unborn child, for such leave to be taken; | ||||
| • | no employee may work for six weeks after the birth of the child, unless a medical practitioner or midwife certifies that she is fit to do so; | ||||
| • | an employee who has a miscarriage during the third trimester of pregnancy or who bears a stillborn child is entitled to six week’s maternity leave after such miscarriage or still birth, regardless of whether she had commenced maternity leave at the time of the miscarriage or still birth; | ||||
| • | an employee must notify the employer in writing,
unless she is unable to do so, of the date on
which she intends to-
|
at least four weeks before the employee intends to commence maternity leave, or if it is not reasonably practicable to do so, as soon as is practicable.
MATERNITY BENEFITS
The Unemployment Insurance Fund Act 63 of 2001 provides security to employees when they become unemployed. Employees who are on maternity leave must apply for benefits at their nearest Labour Centre in person or if they too ill, they can arrange for someone else to go in their place. Employees must apply for these benefits at least 8 weeks before their child is born. Employees can claim for 17 weeks, however, employees who miscarry in the third trimester or have a stillborn child can claim for 6 weeks.
For more information, please do not hesitate to contact
our Lesley Ramulifho at (012) 342 9895 or lesley@legaledge.co.za
PREPARED BY
LESLEY RAMULIFHO
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