MATERNITY LEAVE - CHANGES AND WHAT YOU NEED TO KNOW

On 3 October 2025, the Constitutional Court handed down its landmark judgment in Van Wyk and Others v Minister of Employment and Labour ([2025] ZACC 20), finding that South Africa's current parental-leave framework under the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Act (UIA) unfairly discriminated between mothers, fathers, adoptive parents, and commissioning parents.

The Court ruled that the BCEA's distinction between "maternity leave," "parental leave," "adoption leave," and "commissioning parental leave" violated the constitutional rights to equality and dignity by perpetuating gender-based and family-structure-based discrimination.

Instead of striking down the entire regime immediately, the Court provided temporary rules employers must apply until Parliament amends the BCEA and related laws. Parliament has been given 36 months (three years) to pass corrective legislation.

Core interim changes that apply to workplaces immediately

The Constitutional Court's interim order has the effect of "reading in" new wording to section 25 of the BCEA. This creates a single, flexible parental-leave framework for all parents - biological, adoptive, commissioning, and surrogate - effective immediately.

1.     One shared parental-leave entitlement (four months and ten days)

The total parental-leave entitlement for two employed parents is now four months and ten days. This replaces the old structure where only the birth mother received four months' maternity leave and the other parent (usually the father) received only ten days' parental leave. The 4 months and 10 days acts as a shared pool. Parents can decide how to divide it - either both take some leave at the same time, or one parent takes leave after the other.

If parents cannot agree on how to share it, each employed parent defaults to half of the total period (i.e., two months and five days each). Where only one parent is employed, that parent is entitled to the full four months' consecutive leave. Employers may require employees to provide written confirmation of how the leave will be divided, including supporting documents such as birth or adoption certificates.

2.     Protection of the birth mother's recovery period

The Court recognised the biological realities of childbirth and retained protections for a recovering mother. This means she may still commence leave up to four weeks before the expected due date, unless otherwise agreed. Additionally, she may not work for six weeks after giving birth unless medically certified fit to do so.

If a miscarriage occurs during the third trimester or a stillbirth occurs, the employee is still entitled to six weeks' leave. These weeks taken by the birth mother before and after birth form part of the shared parental-leave pool. Employers should ensure that this recovery period is respected before the remaining shared leave is allocated to either parent.

3.     Equal inclusion of adoptive and commissioning parents

Adoptive and commissioning (surrogacy) parents now enjoy the same total entitlement of four months and ten days. The previous BCEA requirement that adoptive leave applied only to children under two years old has been declared invalid.

The leave period begins on the date the adopted child is placed in the care of the adoptive parents, or the date the commissioning parent becomes responsible for the child's care (under a surrogacy agreement).

4.     Notice and proof requirements

Employees must give their employer at least four weeks' written notice before the intended start of parental leave.

• The notice must include:

• The expected date of birth or placement/adoption,

• The intended start and end dates of leave, and

• A written declaration of how the leave will be shared between the parents.

• Employers may request reasonable proof (such as medical, adoption, or surrogacy documentation).

5.     UIF and pay implications

The BCEA leave entitlement applies immediately, but the UIF system (under the UIA) has not yet been updated. This means there may be a temporary gap between leave entitlement and UIF payment eligibility.

6.     Non-retrospective application

The Constitutional Court's ruling applies to parental leave commencing on or after 3 October 2025, the date of judgment. Employees who were already on maternity, parental, adoption, or commissioning parental leave before that date will continue under the old BCEA framework for the duration of their current leave. The new shared parental-leave system applies only to new leave arrangements beginning thereafter.

7.     Job protection

Employers are reminded that the BCEA continues to protect employees from dismissal or any form of prejudice for taking parental leave. Job security during leave remains intact, and employees must be allowed to return to the same or a comparable position after their leave ends. Any disciplinary or contractual action linked to the exercise of this right could amount to unfair discrimination or automatically unfair dismissal.

Practical implications for employers

• Update policies and contracts: Replace separate maternity/paternity/adoption sections with one consolidated parental-leave policy that reflects the shared entitlement, recovery protections, and notice rules.

• Train managers: Ensure they understand the new flexibility, including the birth mother's recovery period and shared leave mechanisms.

• Record-keeping: Require parents to declare how they will share leave. Keep these agreements on file to prevent disputes.

• Payroll adjustments: Be prepared for varied start and end dates and potential UIF processing delays.

• Non-discrimination: Avoid any policy or practice that differentiates between male/female, adoptive/biological, or commissioning parents - the Court has declared such distinctions unconstitutional.

Employers should note that while the BCEA provides for unpaid leave unless otherwise agreed, existing employment contracts, workplace policies, or collective agreements may offer more favourable paid leave or benefits. In such cases, the more generous provisions continue to apply. The Constitutional Court's ruling establishes the minimum standard that all employers must meet.

The Constitutional Court's 2025 ruling marks a major shift in South African labour law, ensuring all parents are now treated equally under the BCEA. Employers are required to apply the shared parental-leave system (four months and ten days) while protecting the birth mother's recovery period. The new system applies immediately, even though the BCEA has not yet been amended.

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