Labournet’s Adri Louw examines the legal position of a female employee who falls pregnant during her tenure, or is engaged by the company in the early stages of her pregnancy, without the company being aware of the fact that the employee is expecting.
Such situations often give rise to conflict in the employment relationship as the employer may feel that they have been deceived or mislead by the employee’s failure to disclose her condition to the company immediately. This reaction is understandable as the company invariably has to consider the employee’s right to maternity leave, and the unavoidable suspension of services rendered for the requisite minimum 4 month period.
The question then, is the company entitled to take action against the employee for failing to disclose her pregnancy. The only way in which this would be possible, would be if there were a duty on the employee to disclose her pregnancy to the employer.
In terms of section 25 of the Basic Conditions of Employment Act 71 of 1997:
5) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to-
a) Commence maternity leave; and
b) Return to work after maternity leave.
6) Notification in terms of subsection (5) must be given-
a) At least four weeks before the employee intends to take maternity leave; or
b) If it is not reasonably practicable to do so, as soon as is reasonably practicable.
The main purpose of this provision is to allow the employer in advance to make arrangements for the absence of the employee while she is on maternity leave. This mainly means finding a temporary replacement to stand in for the employee, or to ensure that the employee’s duties are redistributed so that they are still attended to during the employee’s absence. There is however no statutory obligation on the employee to disclose her pregnancy in advance of the stipulated four week period.
There is no obligation on the employee to disclose intimate personal information about herself, unless the information would directly affect the business or its wellbeing. This relates to an individual’s constitutional right to privacy. Taking action against the employee for non-disclosure would thus be construed as being related directly to the employee’s pregnancy, as opposed to reasons of misconduct, capacity or operational requirements.
Section 187(1)(e) of the LRA stipulates that a dismissal is automatically unfair if the reason for the dismissal is the employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy.
Likewise any other detriment inflicted on the employee on this ground would be seen as discriminatory and in contravention with the Employment Equity Act, the Labour Relations Act as well as our Constitution.
In the case of Mashava v Cuzen & Woods Attorneys, Judge Landman stated that:
The purpose of protecting female employees from dismissal for reasons of pregnancy, intended pregnancy or reasons related to pregnancy is to ensure as far as possible that female employees are not disadvantaged, as they traditionally have been, by virtue of their being women and the child-bearing members of the human race.
The only defence a company could mount with regards to employing or retaining an employee in her position once she is found to be pregnant, would be to prove that it is an inherent requirement of the job that the employee not be pregnant.
An inherent requirement of the job implies an indispensable attribute of the job which must relate in an inescapable way to the performing of the job required. Such a requirement cannot simply serve to make it more convenient to do the job if the attribute is present. It must refer to the fact that the job cannot be carried out unless that particular attribute is present. Needless to say, it may be very difficult to prove that a company cannot accommodate a pregnant employee, especially considering that the law makes specific provision for the accommodation of pregnant females.
The case may seem simpler where a company asks the employee outright whether they are pregnant, and the employee then denies it. This seems like a clear case of dishonesty. The problem however would be that other than as permitted by the Employment Equity Act, the employer has no right to pose such a question to the employee, and the employee is under no obligation to answer the question. Where the employee answers the question and is later detrimented or overlooked for a position, the company would also open itself up to a well-founded claim of unfair discrimination.
In short, there is no obligation on an employee to disclose her pregnancy to the employer, other than one month before the due date as is set out in section 25(6) of the BCEA. A company thus cannot take action against an employee for not disclosing her pregnancy. Doing so would constitute an unfair labour practice or unfair dismissal, and is in contravention of the LRA and BCEA.
Should the company wish to take action against the employee, they would need to prove valid grounds of misconduct, incapacity or operational requirements, which are not directly related to the employee’s condition.
For more information regarding disclosure of pregnancy, please contact the LabourNet Helpdesk at 0861 LABNET (0861 522638).