Some of the most frequently asked questions RSM consulting agency encounters in practice revolve around the rights and protections of pregnant women in the workplace. In the first instalment of this article series, we covered the laws that protect pregnant employees as well as the obligations of a pregnant employee. In this article, we look at discrimination against pregnant employees.

Are there any cases in South Africa where women have been discriminated against for being pregnant?

There are many cases of discrimination against women for being pregnant. Our legislation in regard to pregnancy and related matters is relatively new and so the case law is relevant and up to date with the changing nature of work and the changing role of women in the workplace. Employers on the whole are becoming more understanding of the issues around discrimination against pregnant women and, given the extensive case law on discrimination regarding pregnancy, intended pregnancy and maternity leave.

An interesting case which dealt with an automatically unfair dismissal related to an employee’s pregnancy is the case of De Beer v SA Export Connection CC t/a Global Paws [2007] ZALC 104. The facts of the case can be summarised as follows:

-    The respondent was a small business that had three to four employees in 2005. The applicant was employed on a three-month contract by the respondent in October 2004. At the end of January 2005 she was offered permanent employment by the respondent that she accepted. Two weeks after she had been made a permanent employee, the applicant announced to the respondent that she was pregnant. Her sister, who was still employed by the respondent at the time was also pregnant. The respondent had no difficulty with her sister’s pregnancy since this was a planned pregnancy. The respondent was concerned about the developments as it meant that seventy percent of its employees would be on maternity leave at the same time.

The applicant was a minor at the time so a meeting was called by the respondent. The purpose of the meeting was to make arrangements to ensure that the respondent’s business operations would continue uninterrupted. An agreement was reached that the applicant’s sister would take four months maternity leave. The applicant would return to work a month after she had given birth. Her mother would be the day care mother for her baby. The applicant’s version supported by her fiancé is that it was also agreed at the meeting that should either she or her baby not be well, other arrangements would have to be made. This was disputed by the respondent. The applicant’s version was also that she was initially threatened with dismissal. This version was however not put to the respondent’s witness when she testified.

-    The applicant went on maternity leave on 23 September 2005 and gave birth to twins on 28 September 2005. In terms of the agreement, she was required to have returned to work on 1 November 2005. After two weeks, the twins started to cry day and night and she took them to a doctor who confirmed that they were colic. They were battling with feeding. Her mother helped her with the twins. She and her mother both could not cope. Two to three days before the applicant was required to return to work, she approached the respondent and requested to be given an additional month of maternity leave. The respondent was prepared to give her two weeks as opposed to a month. The applicant refused. The applicant’s services were terminated on 31 October 2005 and she was given a letter to that effect. The applicant would have returned to work within a month since she was healthy but could not do so because of the twins.

In December 2005 the applicant was given a letter by a doctor who confirmed that she was fine and that the twins were colic. Her sister was due to return from maternity leave in January 2006. The applicant was replaced with another employee in January 2006. The person who had replaced her did not work long for the respondent. Six months after the applicant had been dismissed, she saw an advertisement in a newspaper where her position was advertised. She made enquiries about whether she could not be re-employed. She was told that too many things had taken place and she could not be re-employed again. The respondent said that the situation was created by the applicant’s pregnancy and her not returning after a month had created an impossible situation for the respondent.

-  The applicant instituted proceedings against the respondent for her unlawful dismissal and contended that her dismissal was automatically unfair in terms of section 187(1)(e) of the Labour Relations Act 66 of 1995 (“the LRA”) in that the reason for her dismissal was related to her pregnancy.

- The respondent tried to contend that the wording in section 187(1)(e) of the LRA, “for a reason related to pregnancy”, applied only to complications experienced by the mother as a result of the birth, and not to the illness of the baby but the Labour Court found that the section must be seen as part of “social legislation aimed at protecting women and putting them on a footing equal with men.”

-   The Labour Court held further that “[d]ifficulties experienced by employers in keeping a woman’s job open while she is on maternity leave is the price that must be paid for recognising the equal status of women in the workplace. The law protects women, not only while pregnant, but also while they are attending to the consequences of pregnancies.

-  Interestingly, the Labour Court dealt with the fact that, in its view, it was clear from the evidence led that the applicant was punished for having fallen pregnant, whose pregnancy was unplanned unlike that of her sister. The punishment for this was that she was only given a month’s maternity leave which was clearly in contravention of section 25 of the Basic Conditions of Employment Act 75 of 1997 (the “BCEA”) which inter alia prescribes that an employee is entitled to at least four consecutive months’ maternity leave. Section 26 of the BCEA goes on to prescribe the protection afforded to employees before and after the birth of a child. The Labour Court also correctly pointed out that in terms of section 5 of the BCEA, the BCEA takes precedence over any agreement whether entered into before or after the commencement of the BCEA. Accordingly the applicant was entitled to take four consecutive months’ maternity leave in accordance with the BCEA, and the agreement entered into between the applicant and respondent was void and unenforceable.

-   The Labour Court accordingly found that the dismissal was automatically unfair. It noted that the treatment meted out to the applicant was “degrading and offensive” and awarded her twenty months remuneration as compensation.

What is striking about this case is the absolute blatant disregard that the employer had for the BCEA. If the employer had properly considered the relevant provisions of the BCEA, this matter, and the costly implications thereof, would have been avoided.

What should a pregnant employee do if they feel like they are being discriminated against in their workplace for being pregnant?

-   The first step is always to read through the employers policies on maternity leave or pregnancy and then, if necessary, to lodge a grievance to seek internal resolution to any perceived discrimination. Once the internal processes are exhausted, the employee may approach the CCMA for conciliation. If the discrimination has led to a dismissal for reasons as a result of the employee’s pregnancy, such dismissal may be an automatically unfair dismissal in terms of Section 187 of the Labour Relations Act, such a dispute as a result of an automatically unfair dismissal may be referred to the Labour Court once conciliation has failed.

-   It is highly recommended that anyone who feels that they are being discriminated for being pregnant, consult an experienced professional regarding their matter before commencing with litigation. Intervention by such a professional may in itself obviate the need to unnecessarily litigate.

-   As an aside, an employee who is pregnant should remember that being pregnant is not an absolute bar against being dismissed. An employee who is pregnant may be dismissed for, amongst other things, poor performance or misconduct provided that such dismissal is not for a reason relating to the employee’s pregnancy.

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