Can my employee resign when she's on maternity leave?
Take caution when denying a man maternity leave! Here's why
CASE: Mia v State Information Technology Agency (Pty) Ltd
What were the facts?
In this case, 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.
What did the court decide?
The court concluded that the employer did in fact discriminate against the employee and so had to pay him two months' maternity leave.
In addition, the Court made three very important points, namely that:
Government must amend current legislation, especially the Basic Conditions of Employment Act
(BCEA), to ensure that it properly protects 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; and that
The employer can't discriminate against surrogate parents.
What can you learn?
You need to remember to respect civil unions, same-sex partners and even male employees, and set up your maternity leave policies accordingly, so that you don't discriminate against them.
Also, you must ensure you don't discriminate against employees who are, or who are to become, parents through adoption or surrogacy.
When it comes to men in general being able to qualify for maternity leave, keep in mind the following two requirements:
1. The male employee must be a legal parent. But be wary of giving maternity leave benefits to legal male parents only when they are in marriage or civil union as this could very easily discriminate against other men within your company; and
2. The male employee must be the primary care-giver of a child whom is born alive.
*You need to keep updated of any changes or developments occur. And the best way to do that is to get hold of the Labour Law for Managers
handbook, which is updated accordingly when important changes and developments occur in labour law.
So what are you waiting for? If you don't already have a copy, click here
today to order your copy today.