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Do you have to keep your employee's job open for her while she's on maternity leave?

by , 01 July 2013
You probably know that in terms of the Basic Conditions of Employment Act (BCEA), all female employees can take at least four consecutive months' unpaid maternity leave. But do you know if you're supposed to keep your employees' job open for her while she's on maternity leave? Read on to find out if you should or shouldn't...

When it comes to maternity leave, it's crucial that you know what you're entitled to do and what you aren't.

Because one wrong move could land you at the CCMA.

And one area that often trips up many employers is whether or not they should keep their employees' job open while they're on maternity leave

Are you allowed to keep your employees job open for her while she's on maternity leave?

The short answer is: Yes, you do. She has the right to return to the same, or comparable, job after pregnancy related absence.

Also, if you give her a lesser position than the one she held before, it'd amount to unfair discrimination on the basis of pregnancy.

This goes against the Employment Equity Act, or even a constructive dismissal (when you cause the resignation of an employee because you made continued employment intolerable).

How long should your employee's position be held open for while she's on maternity leave?

This is crucial as employees are often dismissed for reasons based on an employer's operational requirements.

So 'if you decide to retrench an employee who's on maternity leave, or who's just returned from maternity leave, the reasons must be genuine. And you can't neglect your consultation obligations towards your employee,' says the Labour Law for Managers Loose Leaf Service.

Be warned, a dismissal on the basis of pregnancy, intended pregnancy, or any reason related to pregnancy, is automatically unfair.

A dismissal includes the refusal to allow an employee to resume work after she's taken maternity leave in terms of any law, collective agreement or her employment contract.

Well there you have it. Confirmation that you have to keep your employees job open for her while she's on maternity leave, it's her legal right.

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