Conditions of Employment

Maternity leave 

By André Claassen

 

The employee is entitled to 4 months unpaid maternity leave. Maternity leave should commence one month before the expected date of birth of the child, and the employee is obliged to give the employer one month’s notice of the commencement of maternity leave. Employers are not obliged to remunerate employees for maternity leave, and the employee must claim maternity benefits through the Department of Labour.

 

There is no provision in the Labour legislation stipulating at what stage the employee must inform the employer that she is pregnant, except for the requirement that the employee is obliged to give the employer one month’s notice of the commencement of maternity leave. Annual leave continues to accrue to the employee during a period of maternity leave, whether such period of maternity leave is paid leave or unpaid leave.

 

The employer is obliged to hold the employee's job open for her to return from a period of maternity leave.

 

I am often asked whether an employee on maternity leave continues to accrue annual leave during a period of maternity leave. There does not seem to be a clear answer, since different interpretations have been made by different people on this question.

 

Looking firstly at annual leave, The Basic Conditions of Employment Act, section 20 states that a leave cycle is a period of 12 months with the same employer immediately following the commencement of employment. It states further that in every such period of 12 months (leave cycle), the employee is entitled to a period of 21 consecutive days leave on full pay. This, as we all know, equates to 15 working days.

 

This provision for the annual leave entitlement in section 20 (1) and (2) does not make any exclusions to the entitlement – in other words, no employee is excluded from this entitlement and certainly it makes no exclusion based on maternity leave. 

 

This then would imply that the leave cycle of 12 months continues to accrue annual leave, irrespective of whether that 12 month leave cycle is interrupted by maternity leave or not. In other words, that fact that the employee may be on maternity leave – which is in fact unpaid leave – does not actually alter the status of the employee. Put differently, the employee on maternity leave continues to remain an employee of the employer – albeit that the employee is on unpaid leave.

 

In section 20 (2) (b), it is stated that by agreement, annual leave may accrue at the rate of 1 day for every 17 days on which the employee worked or was entitled to be paid.

 

Some employers have interpreted this to mean that, since the employee is on maternity leave, which is unpaid leave, the employee is then neither working nor is entitled to be paid – hence no annual leave accrues while on maternity leave. 

 

This however, would be true only if the employer and the employee had reached written agreement that section 20 (2) (b) would be the agreed basis for accrual of annual leave in that particular employment contract. 

 

In addition, it would seem to me to be an unfair discrimination (based on pregnancy) to exclude an employee from accruing annual leave whilst on maternity leave. It would in fact be a discrimination based solely on reasons related to pregnancy, and as such in my view would be an unfair discrimination.

 

Additional Information

I am often asked whether an employee on maternity leave continues to accrue annual leave during a period of maternity leave. There does not seem to be a clear answer, since different interpretations have been made by different people on this question.

 

Looking firstly at annual leave, The Basic Conditions of Employment Act, section 20 states that a leave cycle is a period of 12 months with the same employer immediately following the commencement of employment. It states further that in every such period of 12 months (leave cycle), the employee is entitled to a period of 21 consecutive days leave on full pay. This, as we all know, equates to 15 working days.

 

This provision for the annual leave entitlement in section 20 (1) and (2) does not make any exclusions to the entitlement – in other words, no employee is excluded from this entitlement and certainly it makes no exclusion based on maternity leave. 

 

This then would imply that the leave cycle of 12 months continues to accrue annual leave, irrespective of whether that 12 month leave cycle is interrupted by maternity leave or not. In other words, that fact that the employee may be on maternity leave – which is in fact unpaid leave – does not actually alter the status of the employee. Put differently, the employee on maternity leave continues to remain an employee of the employer – albeit that the employee is on unpaid leave.

 

In section 20 (2) (b), it is stated that by agreement, annual leave may accrue at the rate of 1 day for every 17 days on which the employee worked or was entitled to be paid.

 

Some employers have interpreted this to mean that, since the employee is on maternity leave, which is unpaid leave, the employee is then neither working nor is entitled to be paid – hence no annual leave accrues while on maternity leave. 

 

This however, would be true only if the employer and the employee had reached written agreement that section 20 (2) (b) would be the agreed basis for accrual of annual leave in that particular employment contract. 

 

In addition, it would seem to me to be an unfair discrimination (based on pregnancy) to exclude an employee from accruing annual leave whilst on maternity leave. It would in fact be a discrimination based solely on reasons related to pregnancy, and as such in my view would be an unfair discrimination.

 

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