How can a man apply for maternity leave?
As the news explains, the male employee had entered into a civil union with a same-sex partner in terms of the Civil Union Act, 2006, according to Ensafrica.com. One year later, the employee and his spouse entered into a surrogacy agreement, confirmed as an order of the High Court.
Before the birth of the child, the employee applied to his employer for paid maternity leave. It is stipulated that the employer's policy provided for paid maternity leave for a maximum of four months.
"The employee was initially refused maternity leave on the grounds that the employer's policy and the Basic Conditions of Employment Act only covered 'female' employees and was silent on the issue of leave for surrogate parents", writes Ensafrica.com.
Eventually, the employer agreed to grant the employee two months' paid adoption leave and two months' unpaid leave and the moment the matter was debated before the Labour Court, the employer denied its policy was discriminatory and the word 'maternity' defined the character of the leave entitlement and, as such, it was a right to be enjoyed by female employees only.
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According to the same source, "the employer further argued that its maternity leave policy was designed to cater for employees who give birth, based on the understanding that pregnancy and childbirth create an undeniable physiological effect that prevents biological mothers from working during portions of pregnancy and during the post-partum period".
So what did the court rule in this landmark materntiy leave case?
The Court decided that the right to maternity leave "is not linked solely to the welfare and health of the child's mother, but must out of necessity be interpreted to take into account the best interests of the child" and that "legislation such as the Basic Conditions of Employment Act would need to be amended to properly deal with such matters, as this legislation proceeds from the basis that only females are entitled to maternity leave".
The court ruled that the employer had unfairly discriminated against the employee by refusing to grant him paid maternity leave and that must recognise the status of parties to a civil union and not discriminate against the rights of surrogate parents. The employer had to pay the balance of the two months' maternity leave that had not been paid to the employee.
There's no question that this represents a step forward when it comes to equity for employees in same-sex unions when they request maternity leave where they have become parents through a surrogacy arrangement. This case could also have an effect on the position of employees who are not paid by employers and who claim maternity leave benefits through the Unemployment Insurance Fund.