Labour law | Maternity leave demystified

By Carol Tissiman

If you are interested in this topic, take a look at our University of Cape Town (Law@Work) Practical Labour Law course.

Pregnant employees are strongly protected under existing South African labour law. There are no fewer than six pieces of legislation that require employers to not discriminate against pregnant and post-pregnant employees, even as applicants for a job.

The Basic Conditions of Employment Act entitles an employee to take four months’ unpaid maternity leave. This leave may start at any time from four weeks before the expected date of birth or when a doctor or midwife certifies that leave is necessary for the health of the mother or the child. Provided that she can write, an employee must notify the employer in writing of the date on which the maternity leave will commence.

In South Africa the employer has no obligation to pay an employee during her maternity leave. The employer’s only obligations are to reserve her position in the company and to allow for four consecutive months of maternity leave. The problem for most women is not the amount of maternity leave allowed, but the financial implications of not being paid for four months.

An employee may not work until six weeks after delivery, unless a doctor or midwife certifies that she is fit to do so. An employee who has a miscarriage during the last three months of pregnancy or who bears a stillborn child is also entitled to six weeks’ maternity leave, whether or not the employee had started maternity leave at the time. An employee nursing her child is not allowed to perform work that is hazardous to her or her child, or which requires her to be working a night shift. Employers should note that even where an employee who has already given birth is 100% well, the illness of the newborn baby entitles the employee to get time off to look after the child.

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