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Case law: What do the courts have to say about discriminating against pregnant employees? Find out here

by , 30 September 2015
Unfair discrimination in the workplace can lead to a fine of R2.7 million or 10% of your turnover. SO, you need to be very careful where you tread so you're not guilty of this.

And pregnancy is one of the areas you can't discriminate over in the workplace.

But, as you'll see, case law has shown that discrimination in terms of pregnancy can be deemed justified.

Read on to find out why.

Case Law

In the case of Whitehead v Woolworths (2000) 21 ILJ 571 LAC and (1999) 20 ILJ 2133, the Labour Court stated that any discrimination against a pregnant employee in the workplace would RARELY be justifiable.

In this case, the applicant had been offered a full-time position at Woolworth. But only a few days later, the position had been withdrawn from her and replaced with a five-month fixed-term contract.

The reason for this withdrawal and change was Whitehead's pregnancy which came to the employer's attention in the interim.

The Labour Court stated that an employer can't discriminate against an employee solely because she will take maternity leave shortly after appointment. This would be the case unless the employer could prove that the task for which it intends to appoint the person HAS to be entirely completed within nine months.

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BUT the Labour Appeal Court disagreed with the Labour Court here

On the other hand, the Labour Appeal Court held that the requirement for continuity of service actually justified the discrimination against Whitehead.

It was shown that Woolworths was experiencing problems at the time and that the nature of the job in fact required uninterrupted continuity of service for a period between 12 to 18 months.

The fact that the Whitehead would not have been able to fulfil the requirements for the position showed that the decision to withdraw her post revolved around her pregnancy.
So, as you can see there may come a time when discrimination against a pregnant employee is deemed justifiable. May this case keep you aware of the continuous complexities within the law and may it encourage you to always stay on top of any changes to it.

To do just that, subscribe to the Loose Leaf Service advertised below.

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Anthony Hansen 2016-07-28 18:48:10

Good day

I trust my e-mail finds you well.

I would appreciate your professional opinion on a matter related to unfairly discriminating an employee because of his wife's pregnancy
CCMA found the his dismissal unfairly and classified it as absenteeism, and his reward was 3 months pay.Subsequently he has gone to the Labour Court to set aside the award. We have read through he's founding statement, and it seems we missed an important fact, that he hardly took off work, had a premature son and his 1st born was to start school the following year. He mentioned that his timeline was effected due to other additional pressures like moving houses and financial difficulty had arisen from our action.

Please advise if we should oppose the Motion of Notion? What would our chances of the court finding in our favour

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