Unfair discrimination against pregnant employees

While going through my socials and timeline in the last few days I noticed the trend #SoWhatImPregnant on Twitter. Here, women relayed shocking stories of how their employers/ former employers had discriminated against them while pregnant.

Others shared how they were even dismissed as a result of a pregnancy. I could not believe that women in South African corporate are experiencing such whereas there are regulations around this issue. The stories shared by these women are horrendous and shocking. These are some of the stories below:

“My colleague was told to do an abortion if she needed the job.”
“I can’t get pregnant otherwise I’ll lose my job”
“I was demoted due to my pregnancy”
“I was demoted upon my return from maternity leave”
“I was denied an apprenticeship because I was pregnant”
“I was forced to work long hours while pregnant until I collapsed”

The labour legislation provides substantial protection for pregnant employees. The legislation around pregnant employees are”

  • Constitution of South Africa
  • Employment Equity Act (EEA)
  • Basic Conditions of Employment Act (BCEA)
  • Labour Relation Act (LRA)
  • Code of good practice on the Protection of Employees During Pregnancy and After the Birth of a Child.

Section 6 of the EEA prohibits against discrimination on the grounds of pregnancy. Section 187 of the LRA prohibits the dismissal of an employee for any reasons related to her pregnancy, in fact this is deemed as automatically unfair dismissal. Employees need to familiarize themselves with these legislations.

According to the BCEA female employees have a right to four consecutive months unpaid maternity leave. A female employee may take maternity leave from four weeks prior to the expected date of birth or on a date determined by a medical practitioner. The balance of the leave needs to be taken after the baby is born, bearing in mind that no employee may work for six weeks after the birth of the baby, unless the medical practitioner certifies that the female employee is fit to resume her duties.

There is no provision in the legislation that stipulates when employees need to inform their employers that they are pregnant, however employees must notify their employers in writing on when they intend to commence maternity leave and expected date to return to work.

Some companies in South Africa do offer paid maternity leave, however this is entirely at their discretion and some companies offer portion of the salary, but they are not legally obliged to do so. Employees who are not remunerated during maternity leave are entitled to claim maternity benefits from the Department of Labour. Employers needs to make sure that their employees are registered for Unemployment Insurance benefits in order for employees to claim their maternity benefits.

No employer can force an employee to terminate their pregnancy because they are going to lose their job. No employer can demote an employee because they are pregnant. No employer can deny an employee a new job/ promotion because they are pregnant. No employee should be treated differently because they are pregnant.

Organisations should be having stringent policies and procedures when it comes to unfair discrimination of any nature, including that of pregnancy.

In the case of Mnguni vs Gumbi (2004 6 BLLR 558):

The receptionist in a medical practice claimed that she’d been dismissed because she complained she felt tired when she was in the advanced stages of pregnancy. The employer claimed the pregnant employee hadn’t been dismissed – only sent home. However, the Labour Court found that:

  • The employer had employed a new receptionist the very next day.
  • The employer hadn’t called on the employee to return to work when the opportunity arose which suggests she had in fact been fired.
  • The dismissal was automatically unfair.
  • The employer had to pay the employee 24 months’ remuneration in compensation.

Should any employee be unfairly discriminated or dismissed due to pregnancy, that employee may refer their dispute to the CCMA.

Nomazibulo Tshanga is the Founder of Ziyana Business Consulting and Training.

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