Despite comprehensive labour legislation prohibiting unfair discrimination, it is still a common occurrence in the workplace. Discrimination on the basis of pregnancy is a well-known concept amongst employers and as such employment disputes against pregnant employees are almost always handled with the utmost caution. Regrettably, the same cannot be said for mothers in the workplace, with employers being under the impression that no special protection is afforded to them on their return from maternity leave. This is not the case. This article will discuss the protection afforded to mothers in the workplace, with a particular focus on new mothers.
Basic Conditions of Employment Act
The Basic Conditions of Employment Act 75 of 1997 (‘BCEA’) is an important piece of legislation that imposes duties on the employer and offers protection to mothers. Section 26 of the BCEA, states the following:
(1) No employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child.
(2) During an employee’s pregnancy, and for a period of six months after the birth of her child, her employer must offer her suitable, alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if—
(a) the employee is required to perform night work, as defined in section 17 (1) or her work poses a danger to her health or safety or that of her child; and
(b) it is practicable for the employer to do so.
The above section was clearly enacted in order to ensure the well-being of mothers and their children. Employers should tread carefully, bearing in mind that this section may be interpreted widely by the Courts. Employer must thus ensure that every endeavour is made to offer suitable alternate work, especially where there is a risk to the new born. A failure to adhere to this section could have severe consequences for the employer.
The BCEA also provides for various regulations that address specific circumstances and / or challenges that mothers may experience in the workplace. In particular, we can refer to Code of Good Practice on the Protection of Employees during Pregnancy and After the Birth of a Child (“the Code”). The Code takes cognisance of the fact that many women return to work while they are still breast feeding and recommends guidelines for employers to follow. It also assists employers by providing detailed guidelines as to how an employer should determine and control hazards to the health and safety of breast feeding employees. The Code also provides a comprehensive list of hazards that breast feeding employees should not be exposed to and goes on to provide directions that an employer may implement to prevent alternatively minimise the risks.
In addition, employers are required to regularly review the working arrangements of breast feeding employees. Employers should also make arrangements for employees who are breast-feeding “to have breaks of 30 minutes twice per day for breast-feeding or expressing milk each working day for the first six months of the child’s life.”
The Code also makes specific reference to shift work wherein it is explicitly stated that arrangements should be considered to accommodate the special needs of workers such as breast feeding workers and workers with family responsibilities. Employers may also consider the childcare needs of employees in order to prepare the shift rosters of workers.
Where there is discrimination in the workplace, employees can look to the Employment Equity Act 55 of 1998 (“EEA”) as well as the Labour Relations Act 6 of 1995 (“LRA”). In terms of the EEA, Section 6 states the following:
“No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.”
The EEA goes on to define family responsibility as “the responsibility of employees in relation to their spouse or partner, their dependant children or other members of their immediate family who need their care or support.”
A new born dependant on her mother for breast feeding would undoubtedly fall within this definition of family responsibility. It is thus important that employers consider all circumstances of an employee who is a new mother before any decision regarding the terms and conditions of their employment are made.
In addition, Section 187(1)(f) of the LRA prohibits unfair discrimination against an employee on the basis of family responsibility. In terms of this section, a dismissal shall be automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against an employee on the grounds of family responsibility.
As per the above authorities, it is clear that should an employer unfairly discriminate against an employee, an employee will have legal recourse in respect of both the EEA and the LRA.
From our experience, employers intentionally ignore the protections afforded to mothers alternatively they remain unaware of these employees’ rights. In these circumstances, there must be an onus placed on employers to educate themselves. More importantly, mothers in the workplace should also take steps to ensure that they are aware of the rights afforded to them. These employees should not be ashamed, especially in male dominated fields, of any special needs their children may have and as such there is also a duty on them to bring their circumstances to the attention of the employer.
We are currently assisting a new mother experiencing discrimination in the workplace on the grounds discussed in this article. We shall keep you updated on the progress of her matter.