On 26 March 2015, the Labour Court in the matter between MIA v State Information Technology Agency (Pty) Ltd held that a maternity leave policy of an employer that limited maternity benefits to female employees, thereby excluding a party to a same-sex union, constitutes unfair discrimination.
In this case the respondent refused to grant maternity leave when the applicant applied for maternity leave on the grounds that its policies and Basic Conditions of Employment Act (“BCEA”) only covered ‘female’ employees and were silent on the issue of leave for surrogate parents.
The respondent denied that its policy was discriminatory and relied on the word ‘maternity’ as being the defining character of the leave and therefore it was only a right to be enjoyed by female employees. The respondent alleged that the maternity leave policy was specifically designed to:
“cater for employees who give birth … based on an understanding that pregnancy and childbirth create an undeniable physiological effect that prevents biological mothers from working during portions of the pregnancy and during the post-partum period.”
The court held that the approach followed by the respondent ignores the fact that the right to maternity leave as created in the BCEA is an entitlement which is not solely linked to the welfare and health of the child’s mother but must of necessity be interpreted to and take into account the best interests of the child.
The Court held that the Civil Union Act and the Children’s Act which recognise same-sex marriages and regulate the rights of parents who have entered into surrogacy agreements respectively, are a consequence of the adoption of the Bill of Rights in the Constitution and that “any policy adopted by an employer should likewise recognise or be interpreted or amended to adequately protect the rights that flow from the Civil Union Act and the Children’s Act.”
For this reason, the court found that there was no reason why an employee in the position of the applicant should not be entitled to “maternity leave”, that there was equally no reason why such maternity leave should not be for the same duration as the maternity leave to which a natural mother is entitled and that the respondent’s maternity policy accordingly unfairly discriminated against the applicant.
While the provisions of the BCEA were not challenged in the matter, given that the respondent had relied on its maternity policy when refusing to grant the applicant four month’s maternity leave, the court alluded to the fact that it may be necessary to amend the BCEA in order to properly regulate this issue.