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Can you actually dismiss an employee during maternity leave? Here's what labour law states

by , 16 March 2015
Maternity leave is tricky. Especially when it comes to firing an employee.
That's why today we're showing you exactly what labour law says about maternity leave and what your rights are if you want to get rid of an employee who's on it.

But first, here's what the BCEA says about maternity leave

According to Section 2 of BCEA if your female employee gives birth she is entitled to at least four consecutive months maternity leave. The law states that she may start her maternity leave at any time from four weeks before her expected date of confinement or on a date from which a medical practitioner or midwife certifies that it's necessary for the employee's health or that of her unborn child. Out of these four months, six weeks leave has to be taken after confinement. If a medical practitioner or midwife certifies that she is fit to do so, the woman may return to work earlier.  

The BCEA also prohibits employment of pregnant workers or those nursing their children in work that is hazardous to their health or the health of their children.

Section 26 of BCEA states that as an employer, during the pregnancy and for the six months after the birth of child, you must offer your worker suitable alternative employment on terms and conditions that are not less favourable than her original terms and conditions if she is performing night work or her work poses a danger to her health and safety or to that of her child and when it is practicable for the employer to provide such reasonable accommodation, an employer.

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But can you actually dismiss her?

According to the Labour Relations Act, section 185-187, you can't dismiss her during the period of her pregnancy and maternity leave.
The law sees a dismissal on account of pregnancy or other reasons related to her pregnancy, as automatically unfair. In fact, it even protects her legal right to return to the same position after finishing maternity leave.

If you decide not to allow her to resume work on her return from maternity leave the law will consider it unfair dismissal (Labour Relations Act, section 186). And that means BIG trouble for you.
So there you have it. Now that you know what the law says, don't overstep it when it comes to your pregnant employees.

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