Employment Law Update Pregnancy Policy Censured

According to the International Labour Organisation, many pregnant women and new
mothers remain vulnerable in the workplace. Shocking international examples include
Kenyan women who have been forced to sign agreements promising that they would not
become pregnant and female cleaners in Honduras who are regularly asked to take
pregnancy tests to secure their employment. Despite the strides which have been made
in recent years, South African mothers still face discrimination in the workplace on the
grounds of pregnancy.

A recent example of this was when an employer unfairly discriminated against a pregnant
employee by enforcing their “Pregnancy in the Workplace Policy” (“the policy”)
To all appearances, the policy complied with the provisions of the Basic Conditions of
Employment Act, 75 of 1997 (“BCEA”).

It stated that the employer could provide alternative employment to an employee during
her pregnancy and breast-feeding if the employee is engaged in high-risk work and it is
reasonably practicable for the employer to do so (section 26(2) of the BCEA). If no other
work was available, the employee would be placed on unpaid leave in line with the BCEA.
The employee could, however, only apply for paid maternity leave once within a three-year
cycle. The second occurrence of pregnancy within a three-year cycle would, therefore, be unpaid.

In this case, the employee was employed as an underground heavy-duty truck driver. She
became pregnant and was immediately removed from her hazardous duties underground.
This was her second pregnancy within her three-year cycle, and she was scheduled to go
on maternity leave on 29 November 2014.

She applied for an alternative position in lieu of taking unpaid maternity leave prior
to 29 November 2014 but was informed that her employer was unable to find her a suitable
alternative position. As a result, her application was denied, and she was
forced to take unpaid leave from 4 June 2014 to 28 November 2014.

The employee was aggrieved by this arrangement and claimed that her employer unfairly
discriminated against her by reason of her pregnancy in not placing her in an alternative
position for the abovementioned period. She argued that another employee had reported
her own pregnancy mere days after she had and that this employee had been accommodated.

As a result, she believed that her employer was able to accommodate her as well.
The only difference between herself and her co-worker was that she was
pregnant for the second time in three years. She subsequently referred her unfair
discrimination dispute to the CCMA and won. This award was reviewed and set aside by
the Labour Court, but then appealed to the Labour Appeal Court.

On 18 May 2020, the Labour Appeal Court ruled in favour of the employee. The court
reiterated that discrimination on the grounds of pregnancy is a listed prohibited ground
in terms of section 6(1) of the EEA.

The court found that it was clear from the leave records that the employee wanted to
work in an alternative position. Regardless, the employee was informed that the reason
why she was not provided with an alternative position was because she had fallen pregnant
twice within her three-year cycle. The court noted further that, in line with their policy,
the employer opted not to find an alternative position for her. The court also noted they
were able to accommodate another employee within the same time period and that the
employer offered no explanation for this differentiation. As a result, the court held that it
is apparent from the facts that in its treatment of the employee, that the employer
differentiated between the employee and other employees.

This differentiation arose because of her pregnancy for a second occasion in a three-year
cycle. The respondent failed to show that the discrimination was rational and not unfair
or was otherwise justifiable. In the circumstances, the respondent’s decision in refusing
to place the appellant into alternative employment, prior to her unpaid maternity leave,
constituted an act of unfair discrimination.

Based on this case, we advise employers of pregnant employees who perform high-risk
work and who must be removed from their positions pending maternity leave, to carefully
review their practices and policies. Alternative placement of employees should only be
refused if this refusal is rational, not unfair or otherwise justifiable. The case indicates
to employers that this bar is high and that employers should strive to protect the rights
of pregnant employees as envisioned by our Constitution.