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                             Unfair Discrimination – Pregnancy

Section 9(3) and (4) of the Constitution of South Africa prohibits any person to discriminate against any other person. This means that every person has a constitutional right not to be discriminated against. Section 187(e) of the Labour Relations Act [LRA] as well as the Employment Equity Act [EEA] in section 6, prohibits unfair discrimination. One can distinguish between direct and indirect discrimination. Direct discrimination is intentional and means that an adverse action is taken against a person because the posses a specific characteristic as listed in section 9(3) and (4). For example: The lady applying for the position is pregnant, therefore she is not appointed.

Indirect discrimination is when seemingly objectives are placed to exclude certain groups of persons. For example: Only people who studied at the University of Pretoria between 1984 and 1990 will qualify for an interview. It is important to remember that indirect discrimination may be intentional or unintentional.[1] The employer’s motive has no bearing on whether indirect discrimination has taken place, and the employee needs not to prove that he has been prejudiced or suffered loss.[2]

Not all employers will jump of joy when they are informed by an employee that she is pregnant. Most probably the employer will have a negative reaction. Despite the employers feelings, an employee is in entitled to 4 (four) months unpaid maternity leave as stated in section 25 of the Basic Conditions of Employment Act (BCEA). The maternity leave may be taken at any time from 4 (four) weeks prior to the expected date of birth of the child (unless a medical practitioner or a midwife advices otherwise) and she may not return to work for 6 (six) weeks after the birth of her child, unless (same as above, unless a medical practitioner or a midwife advices otherwise).

A pregnant lady can claim UIF maternity benefits from the Department of Labour and she can submit her claim forms at least 8 (eight) weeks prior to commencing her maternity leave. If an employee is discriminated against, because of her pregnancy, this type of discrimination will fall under automatically unfair discrimination [sec 187(e) of the LRA] and the employee can get up to 24 (twenty four) months’ salary.

In Wallace v Du Toit [2006] 8 BLLR 757 (LC) the applicant was appointed as an au pair to care for her employer’s two young children. After two years, the applicant fell pregnant, and her employment was terminated. The applicant claimed that he had made it clear at the pre-employment interview that the applicant would no longer qualify for employment if she had children of her own, as her loyalties to his own children would be divided, and that the employment relationship had lapsed by virtue of a “resolutive condition” having been satisfied. The applicant admitted that she and the respondent had discussed her marital status before she commenced employment, but denied that she had been told that being childless was a condition of employment. The applicant sought compensation under the Labour Relations Act (“LRA”) for what she claimed was an automatically unfair dismissal and damages under the Employment Equity Act.

I am satisfied that a dismissal as defined in section 186(1)(a) of the Labour Relations Act has been proven and that the reason for the dismissal related to the applicant’s pregnancy. The evidence made this plain and it was agreed as one of the common cause facts in the pre-trial minute.  It follows that such a dismissal is automatically unfair in terms of section 187(1)(e) of the LRA. The respondent’s justification that this was an inherent requirement of the job, even if it was sustainable, which in my view it is not, cannot in law provide a legal justification. The section is clear. A dismissal where the reason is related to the pregnancy of the employee is automatically unfair and cannot be justified.

It is plain that there has also been unfair discrimination in terms of section 6(1) of the Employment Equity Act since it certainly cannot be said that there is an inherent requirement of the job of an au pair that the incumbent must not be pregnant nor a parent. This is the kind of generalisation or stereotyping that evidences the unfairness of the discrimination. The focus must be on whether the impact of the discrimination was unfair

I consider that an amount of R25 000 would constitute fair solatium damages for the impairment of the applicant’s dignity and self-esteem flowing from the discrimination on the grounds of her pregnancy. The figure is also intended to be punitive To the figure of R25 000 must be added compensation for the patrimonial loss suffered by the applicant. The applicant has been out of employment since March 2005, some 12 months, and presumably could have continued working until she gave birth or shortly before she gave birth in May of 2005, when, had she been registered with UIF, could have received a portion of her pay while on maternity leave and then returned to work. A total amount of R71 500 was awarded to the employee.

Employers, be very careful with your pregnant employees

[1] Association of Professional Teachers & another v Minister of Education & others (1995) 16 ILJ 1048 (IC).

[2] Leonard Dingler Employee Representative Council & others v Leonard Dingler (Pty) Ltd & others (1998) 19 ILJ 285 (LC).

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