Differentiation between types of parents and certain provisions of BCEA leave and UIF benefits declared unconstitutional and invalid

Labour Law

On 25 October 2023, the Gauteng Division of the High Court of South Africa handed down a judgment in the case of Van Wyk and Others v Minister of Employment and Labour [2023] ZAGPJHC 1213.

The issue to be decided was whether certain provisions of the Basic Conditions of Employment Act, 75 of 1997 (“BCEA”) which regulate maternity, parental, adoption and commissioning parental leave, as well as the relevant provisions of the Unemployment Insurance Act, 63 of 2001 (“UI Act”), violate the rights of equality and dignity as enshrined in the Constitution of the Republic.

The BCEA differentiates between mothers and fathers and different types of parenthood, i.e. whether a child is naturally born of the mother, adopted or conceived by surrogacy.  

The provisions of the BCEA and the UI Act were declared to be inconsistent with constitutional rights to dignity and equality insofar as they unfairly discriminate between mothers and fathers and different types of parenthood in its regulation of the leave entitlement. The birth-mother employee is entitled to 4 months/16 weeks maternity leave and the father to 10 days parental leave whereas  adoptive parents whose child is less than 2 years old could exercise the option of taking 10 weeks adoptive leave or 10 days parental leave. The parents of the child born via surrogacy is entitled to take 10 weeks commissioning parental leave or 10 days parental leave.

The Court ruled that these differentiation of leave entitlements  between the birth-mother and the father, and parents of the adopted child and commissioning parents were irrational and discriminates one or other parent unfairly as both parents have the equal duty of child care and to nurture their children

The Court concluded on the following:

  • That sections 25, 25A, 25B and 25C in the BCEA and related provisions of the UIF Act do offend sections 9 and 10 of the Constitution. 
  • Parliament be given 2 years to cure the defects or eliminate the inequalities.
  • Pending the Parliamentary process, in the interim period, all parents of whatever stripe, enjoy 4 consecutive months’ parental leave, collectively. Each parent shall elect to share the 4 months and should equally enjoy the benefits from the UIF
  • The ruling has to be confirmed by the Constitutional Court first before implementation, and it would be interesting to see if the Minister of Employment and Labour  will  apply for leave to appeal. 

The implications of this decision are that the employers who pay additional benefit for the different types of leave and in particular, commissioning leave, either contractually or as a results of collective bargaining, may incur additional financial cost and may also affect resource allocation and operational capacity of their businesses. 

Please contact us should you need to know how the ruling may affect you and the business. 

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