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 But only a few days later, the position had been withdrawn from her and replaced with a five-month fixed-term contract.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.
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.
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