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Case law: Maternity leave for men

by , 06 October 2015
Many think of 'maternity leave' as a privilege only enjoyed by pregnant female employees.

But it would appear that this understanding is not necessarily that straightforward.

Case: Mia v State Information Technology Agency (Pty) Ltd

In the case of Mia v State Information Technology Agency (Pty) Ltd, the employee and his same-sex partner were in a civil union together.
They entered into a surrogacy agreement with a surrogate mother.

The employer wouldn't grant the employee four months' maternity leave, as requested by the employee, because it stated that he was not female and because its policy did not deal with birth by surrogacy.

In response, the employee took the employer to court.

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After carefully looking at the case, the Court decided that:

·        Government must amend current legislation, especially the BCEA, in ensuring that it deals properly with the constitutional rights in the Civil Unions Act as well as the Children's Act;

·        The employee should get the same amount of maternity leave as a natural mother would;

·        The employer did discriminate against the employee;

·        The employer can't discriminate against surrogate parents; and that

·        The employer had to pay the employee the two months' maternity leave that it didn't.

So then, from this case, remember to word your policies in a way that doesn't unfairly discriminate against civil unions, same-sex partners or even male employees.

Also, you must ensure that you don't discriminate against employees who are, or who are to become, parents through adoption or surrogacy.
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