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South Africa: Parental Leave Rights Expanded Following Constitutional Court Ruling

By - - Employment Law, Parental Leave

South Africa’s Constitutional Court has ruled that parts of the Basic Conditions of Employment Act (BCEA) and the Unemployment Insurance Fund Act (UIF Act) are unconstitutional due to unequal treatment of parents.

The ruling introduces immediate changes to parental leave entitlements and gives Parliament 36 months to pass new legislation.

New Parental Leave Framework
  • Universal Entitlement: All parents – biological, adoptive, and via surrogacy – will now be entitled to four months and ten days of parental leave.
  • Flexible Sharing: Parents may divide the leave as they choose whether taken together or separately. However, each parent must take their leave in one continuous block.
  • Single Parent Provision: If only one parent is employed, they may take the full leave allocation.
  • Birth Mothers: Must take at least six weeks off post-birth (unless medically cleared), which counts against the total leave.
  • No Agreement Clause: If parents can’t agree on how to split the leave, it should be divided as equally as possible and completed within four months of birth or adoption.
Additional Clarifications
  • Adoption Age Cap: The Court found it unconstitutional to limit leave to adoptions of children under two years old, but the age cap remains in place until Parliament updates the law.
  • Policy Updates Required: Employers must revise parental leave policies to reflect these changes and avoid discrimination risks.
  • Unpaid Leave with UIF Support: While the new leave is unpaid under the BCEA, employees may claim benefits from the UIF. Relevant UIF Act sections have also been declared invalid to enable this.
Employer Considerations

Employers should:

  • Review and update leave policies to ensure equal treatment of all parents.
  • Avoid discrimination by offering consistent benefits to birth mothers, other biological parents, and adoptive/surrogacy parents.
  • Prepare for compliance with future legislation and monitor developments over the next 36 months.

This is a high-level general update only. Legal advice should be obtained on specific circumstances.
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