The Constitutional Court’s recent judgment in Van Wyk and Others v Minister of Employment and Labour and Others(CCT 308/23) [2025] ZACC 20 has been widely celebrated as a victory for parental equality.
The Court confirmed that provisions of the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Act (UIF Act) unfairly discriminated between categories of parents. It introduced an interim regime allowing parents to share a combined four months and ten days of leave when their child is born or adopted.
The Court’s order suspends and modifies section 25 of the BCEA, creating a shared-leave entitlement. This shared-leave model is already expected to cause disputes. The Court even anticipates disagreement, suggesting the leave should be apportioned between the parents to be as close as possible to half of the total time. In practice, disagreements are likely, potentially pulling employers into the middle of domestic disputes, especially where parents work for different organizations.
More concerningly, the judgment leaves employers facing a practical question: what happens to existing paid maternity-leave policies that apply only to female employees?
The BCEA establishes minimum unpaid leave; however, most professional and corporate sector employers grant paid maternity leave to female employees, typically four months linked to childbirth. These policies now intersect with the new gender-neutral leave structure.
The immediate question is whether continuing to pay only female employees constitutes unfair discrimination. At first glance, a policy paying only female employees during parental leave appears inconsistent with the constitutional principle of equality.
The Court held that categorizing a birth mother as a distinct beneficiary, separate from “other mothers or parents,” constituted unfair discrimination. However, this glosses over the biological case that a birth mother requires a period of physical recovery. By treating birth mothers the same as “other mothers or parents,” this period of recovery could substantially decrease her available leave if she is forced to take an equal portion with the father due to disagreement. The only preference a birth mother appears to obtain is for “the time currently allocated as preparation for and recovery from birth.”
Common Scenarios for Policy Review
Biological Parents: An employer currently grants four months’ fully paid maternity leave to birth mothers. If a male employee now requests two months’ paid shared leave, refusing payment because only women receive it may no longer be objectively justifiable.
Surrogacy and Adoption: Surrogate, same-sex, and adoptive parents are entitled to share the four months and ten days of parental leave. A paid-leave policy limited to “female employees who give birth” excludes these parents entirely. This exclusion has no medical justification and would almost certainly constitute unfair discrimination.
The Way Forward for Employers
The primary legal risk is not that existing policies are unlawful per se, but that their application may result in indirect unfair discrimination. Employers should:
Review and amend their policies to align with the interim framework.
Consider allowing paid maternity benefits to birth mothers, with a guaranteed minimum, and then provide a paid entitlement for all other categories of parents entitled to parental leave.
The requirement for fairness may, ironically, have the opposite effect: employers may remove paid entitlements for all categories, updating policies (following fair processes) to take away paid maternity benefits. The economic reality is that many employers simply cannot afford a large percentage of their workforce being unproductive for extended periods while still being paid.
The Constitutional Court has rightly moved South African law toward equality. Yet, equality on paper does not always translate into workplace fairness. In striving for equality, the Court may have forgotten Solomon’s wisdom — equality doesn’t always mean cutting the baby in half. Employers who continue to pay only female employees may find themselves defending policies that no longer fit the constitutional landscape.
Bradley Workman-Davies is a Director and Kerry Fredericks is a Director at Werksmans Attorneys.
