Under South African Labour Law, employees who are pregnant or on maternity leave enjoy extensive protection from discriminatory conduct and dismissal if such discrimination or dismissal is directly or indirectly based on their pregnancy. In terms of section 187(1)(e) of the Labour Relations Act, 1995 (LRA), any dismissal based on pregnancy is an automatically unfair dismissal.  Section 6 of the Employment Equity Act, 1998 (EEA) reinforces the Constitutional prohibition against discrimination on the grounds of pregnancy.

Nonetheless, an employer is entitled to dismiss an employee for operational requirements where it can be shown that the dismissal was based on the genuine operational needs of the business and that there was no singling out of the employee based on her status. An employer further needs to ensure that in carrying out any retrenchments, there is procedural compliance in terms of either sections 189 or 189A of the LRA which requires consultation with employees affected by the restructure.  It is important for employers to be aware that whilst they are free to consult with and retrench on operational grounds pregnant employees prior to them going on maternity leave, employees who are already on maternity leave may not be consulted or contacted until they return from such leave.  The employer thus has to hold the position open until the employee returns from maternity leave and can only then begin consultations.

What of the situation where an employee and employer agree, prior to any pregnancy or retrenchments, that the employee would become redundant should pregnancy and retrenchment occur simultaneously? Or where having no children is an ‘inherent requirement’ of a job?

The position that the South African Labour Courts have taken is that an employee cannot contract out of their minimum statutory rights, including their rights to maternity leave provided for in the Basic Conditions of Employment Act, 1997.  Consequently any dismissal in accordance with such an agreement would constitute an automatically unfair dismissal.

In Wallace v Du Toit [2006] 8 BLLR 757 (LC), an au pair’s employment was terminated when she disclosed her pregnancy to her employer who then subsequently dismissed her on the basis that her childlessness was an inherent requirement of the job – a condition of employment the employee had previously agreed to. It was held that in spite of the prior agreement, there was no legal justification therefore and the termination of her employment was held to be an automatically unfair dismissal. As compensation, she was awarded damages for solatium, patrimonial loss, as well as the amount she would have received from the Unemployment Insurance Fund had she been registered.

In sum, although employers may retrench a pregnant employee or an employee who returns from maternity leave, they need to exercise caution regarding both the procedural and substantive aspects of the retrenchment. As illustrated above, the Courts are likely to adopt a strict approach when it comes to the protection of mothers.  Employers who do not act within the confines of the legislative framework may find themselves subject to unfair dismissal claims which, particularly in pregnancy and maternity leave related cases, have historically given rise to substantial damages and compensation awards.

This article was written by Jason Whyte (with Robin Adams and Mu’attham Carlie),  Director at Norton Rose Fulbright South Africa

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