Employment Law: Does annual leave accrue while you are on maternity leave?

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Labournet’s Bongani Khanyile takes a look at what happens to annual leave when an employee is on maternity leave.

Does the maternity leave interrupt the accrual of annual leave entitlement of the employee? Given the number of queries they are inundated with on a daily basis, this topic is far from being trite.

Perhaps the best starting point for this discourse is to revert to the Basic Conditions of Employment Act and the provision regarding annual leave therein in order to solve this apparent legal penumbra.

Section 20(2) of the Act provides that an “employer MUST grant an employee at least 21 consecutive days annual leave on full remuneration in respect of full annual cycle” (which consists of twelve months) (his emphasis).

It is important to point out firstly that section 20(2) is written in peremptory language. The wording used by the legislature is “must”. Secondly, the section does not provide an exception where an employer may never allow the employee an entitlement of 21 days. It should however be borne in mind that the Act establishes minimum terms and conditions, anything above the entitlement will of course be more favourable and will not be contravening the Act.

The question of the status of annual leave during maternity leave also raises a further question as to the status of a pregnant employee during maternity leave. The proponents of the school of thought that argue that annual leave does not accrue during maternity leave will do well to consider that if this situation be true, the employee on maternity leave ceases to be an employee for the period of maternity. This is an anomaly and cannot be the intention of the Act. An employee on maternity leave is still an employee and remains such, albeit on maternity.

This viewpoint he holds is further cemented by the provision of Section 6 of the Employment Equity Act. The said section prohibits an employer from unfairly discriminating against an employee on the grounds of pregnancy, intended pregnancy or reasons related to pregnancy.

If indeed annual leave does not accumulate during maternity leave, this will fall foul of section 6 of the Employment Equity Act and would be a clear violation of the said section.

Section 20(5) of the Basic Conditions of Employment Act prohibits an employer from permitting an employee from taking annual leave concurrently with other leave which are maternity leave, sick leave and family responsibility leave. This further supports his viewpoint that if annual leave cannot run concurrently with maternity leave, suspending the running of leave prescription as it were, would be illogical and discriminatory as argued above.


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