Pregnancy and the employer

Pregnancy and the Employer

By André Claassen

 

Click here to download the Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child

 

The first thing that employers need to understand is that no person may be discriminated against or dismissed on account of pregnancy. This is stated in paragraph 4.2 of the Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of Her Child.

 

It must be pointed out here that the Code states clearly " no person", which would seem to imply that even the father of the child may not be unfairly discriminated against on grounds of the pregnancy of his wife or life partner.

 

This barrier against unfair discrimination is entrenched in the Constitution, in section 9 (3) and (4).

 

Firstly therefore it is a Constitutional right.

 

The prohibition against unfair discrimination is also entrenched in the Labour Relations Act in section the 187 (e), and in the Employment Equity Act, section 6.

 

This means that employers have to adhere to to the Constitution, and also the Labour Relations Act and the Employment Equity Act.

 

From this employers would deduce that this is not a matter to be trifled with, and pregnant employees, all employees on maternity leave, the baby itself, and (it would seem) the fathers, all have rights bestowed upon them by legislation.

 

Employers would be wise to note that many of the rights bestowed upon the employee places a corresponding duty or legal obligation upon the employer. The rights of employees thus cannot be ignored.

 

The Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of the Child refers to section 26 (1) of the Basic Conditions of Employment Act, which in turn protects breast-feeding mothers upon their return to work.

 

In terms of paragraph 4.3 of the Code of Good Practice, employers are required to provide and maintain a work environment that is safe and without risk to the health of employees. The Code states that this includes risks to the reproductive health of employees, and in this connection the Occupational Health and Safety Act 85 of 1993 also comes into play, and employers have a duty to familiarise themselves with that Act as well.

 

It is in the interests of the employer to study and thoroughly familiarise himself with the requirements of the Code of Good Practice if the employer wishes to avoid what might prove to be rather expensive litigation at a later stage.

 

As far as pregnant and breast-feeding employees are concerned, the Code of Good Practice lays down very specific requirements in section 5, requiring the employer to act in terms of the identification and assessment of risks, and implementing appropriate action to avoid any risks to the health of the employee or the unborn child, or risks to the breast-feeding child.

 

The Code of Good Practice deals separately with hazards classed as ergonomic, chemical, and biological, and in section 7 it deals quite extensively with aspects of pregnancy that may affect work.

 

The section addresses such issues as morning sickness, backache and varicose veins, the employee requiring more frequent visits to the toilet, the increasing size and discomfort of the employee as the period of pregnancy progresses, even addressing issues such as the employees sense of balance becoming affected if she is required to work or walk on slippery or wet surfaces in the workplace.

 

The section also addresses issues of tiredness associated with pregnancy.

 

It is considered (and indeed, a legislative requirement) that all employers study and thoroughly familiarise themselves with the contents of this Code of Good Practice, because compliance or noncompliance may well prove to be the deciding factor on whether prolonged and expensive CCMA or Labour Court proceedings must be faced or not.

 

 

 

 

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

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Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

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Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

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Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

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