DISCRIMINATION AND PREGNANCY

–  Section 9(3) and (4) of the Constitution of South Africa prohibits any person to discriminate against any other person. This means that every person has a constitutional right not to be discriminated against –

Section 187(e) of the Labour Relations Act [LRA] as well as the Employment Equity Act [EEA] in section 6 prohibits unfair discrimination. One can distinguish between direct and indirect discrimination as well as intentional or unintentional.

One of the categories include under discrimination is pregnancy. A woman may

not be dismissed in any circumstances merely because she is pregnant. However, employers are not precluded from dismissing an employee who is pregnant for operational requirements, provided that the employer can show that there was indeed a valid economic or related reason.

A woman on maternity leave is also not immune from dismissal. Not all employers will jump of joy when an employee informs them that she is pregnant. Despite the employer’s feelings, an employee is entitled to 4 (four) months unpaid maternity leave as stated in section 25 of the Basic Conditions of Employment Act (BCEA).

Maternity leave may be taken at any time from 4 (four) weeks prior to the expected date of birth of the child (unless a medical practitioner or a midwife advices otherwise) and she may not return to work for 6 (six)

weeks after the birth of her child, unless (same as above, unless a medical practitioner or a midwife advices otherwise).

If an employee is discriminated against, because of her pregnancy, this type of discrimination will fall under automatically unfair discrimination [sec 187(e) of the LRA] and the employee can get up to 24 (twenty four) months’ salary as compensation.

In Wallace v Du Toit [2006] 8 BLLR 757 (LC) the applicant was appointed as an au pair to care for her employer’s two young children. After two years, the applicant fell pregnant, and her employment was terminated. The applicant claimed that he had made it clear at the pre-employment interview that the applicant would no longer qualify for employment if she had children of her own, as her loyalties to his own children would be divided, and that the employment relationship had lapsed by virtue of a “resolutive condition” having been satisfied. The applicant admitted that she and the respondent had discussed her marital status before she commenced employment, but denied that she had been told that being childless was a condition of employment. The applicant sought compensation under the LRA for what she

claimed was an automatically unfair dismissal and damages under the EEA.

It follows that such a dismissal is automatically unfair in terms of section 187(1)(e) of the LRA. The respondent’s justification that this was an inherent requirement of the job, even if it was sustainable, which in my view it is not, cannot in law provide a legal justification. The section is clear. A dismissal where the reason is related to the pregnancy of the employee is automatically unfair and cannot be justified.

It is plain that there has also been unfair discrimination in terms of section 6(1) of the EEA since it certainly cannot be said that there is an inherent requirement of the job of an au pair that the incumbent must not be pregnant nor a parent. This is the kind of generalization or stereotyping that evidences the unfairness of the discrimination. The focus must be on whether the impact of the discrimination was unfair. If the main reason for the dismissal is the employee’s pregnancy, the employer cannot rely on an ancillary reason, e.g. the employee’s alleged deceit in not disclosing her condition. Conversely, a pregnant employee cannot rely on her pregnancy as a defense against conduct that constitutes a disciplinary offence.

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