Ensuring Workplace Equity and Safety for Pregnant Employees

In this chapter, the research question will be determined in a sense that a full overview and purpose of the research project will be outlined. This will also provide a broad overview on the constitutional and legislative background of treasonable accommodation for pregnant employees. The Bill of Rights in Chapter 2 of the Constitution guarantees the right to equality and states that everyone should be treated equally and that everyone is equal before the law. Equality is compromised when people are treated unfavourably for reasons stated in section 3 of the constitution and section 6(1) of the EEA. Befors the enactment of various Legislation like the Employment Equity Act and the Basic Conditions Conditions Of employment Act , common law dictated the position of pregnant employees in the workplace and prescribed that women who were absent from work to give birth were in danger of being dismissed, especially where the employer failed to agree to such absence.

THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996

Females and pregnant workers in the workplace are currently protected by an abundance of legislation under South African Law. Becouse of the equality clause in the Constitution (section 9), relevant legislation was predominantly enacted to give effect to Two fundamental rights contained in the Bill of Rights (Chapter 2 of the Constitution) namely the right to equality and the right to human dignity. Regarding equality, section 9(3) of the Constitution says that' the State may not discriminate directly or indirectly against anyone for one or more reasons, including the intention to fall pregnant.’.

Section 9(4) of the Constitution further reiterates that Under no circumstances should direct and indirect unfair discrimination be tolerated. Women therefore have a constitutional right not only to Human dignity which is a concept that should be maintained in all conditions, including in the workplace,but also human dignity which demands that pregnant employees are worthy of the same respect and treatment as their male counterparts and that unfair discrimination is an infringement on this right.

Moreover, everybody has the right to fair labor practices in Section 13. This means by 'everyone' that pregnant workers are also granted this right to fair and equitable labour practices.

THE BASIC CONDITIONS OF EMPLOYMENT ACT 75 OF 1997

The prior Basic Conditions of Employment Act 3 of 1983 afforded no protection to pregnant staff. Moreover, pregnant workers were banned from work for four weeks before birth and eight weeks after birth.

Under the present Basic Conditions of Employment Act 75 of 1997 (BCEA), this stance has altered dramatically. The present BCEA offers for minimum employment circumstances. Part of these circumstances is that pregnant workers are entitled to maternity leave for four consecutive months. However,this leave on an unpaid basis. 

Section 26 of the Act talks about the protection of employees before and after birth, and states in Subsection (1) that No employer may require or permit a pregnant employee to perform work that is haradous to her health or the health of her child.Subsection (2) further provides that During the pregnancy of an employer , and for a period of six months after the birth of her child , her employer must offer her suitable , alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment , if- (a) the employee is required to perform night work, as defined in section 17() or her work poeses danger to her health or safety or that of her child, and (b) iit is practical for the employer to do so. 

Maternity leave may begin four weeks before the baby's anticipated birth. Optionally, maternity leave may be taken at a moment when a doctor asserts that maternity leave is crucial for mother and/or baby's health and safety reasons. The employee has the right to maternity leave for up to six weeks, if the baby is born dead or she has a miscarriage from 28 weeks of the pregnancy onwards.

As stipulated by the BCEA, when starting maternity leave, a pregnant worker must tell the employer in writing, at least four weeks before the start of the maternity leave or when such notification is reasonably feasible. The pregnant employee must also inform her employer when she returns to work after the termination of her maternity leave. However, an worker may not return to the workplace for at least six weeks after giving birth.

During maternity leave, females are entitled to receive maternity advantages under the Unemployment Insurance Fund (UIF) where they qualify under the Unemployment Insurance Act 63 of 2001 (UIA). Maternity advantages may be claimed as quickly as the pregnant worker begins maternity leave. Maternity advantages may be asserted by staff who have given birth for up to 17.32 weeks. Employees who miscarry or have a stillborn child in their third trimester can claim maternity advantages for six weeks. Du Toit argues that it is automatically unfair to allow an worker to return to job after maternity leave.

Pregnant workers are not permitted to work under dangerous conditions. It would be unfair to be forced to work under circumstances that are harmful to the pregnant worker and/or her baby's health and safety.Alternative jobs should be arranged to make the health and well-being of the pregnant worker and her child more suitable, where the pregnant worker is contracted to work night shifts and circumstances for the pregnant worker may be hazardous.

Moreover, the Code of Good Practice on the Protection of Employees during Pregnancy and After the Birth of a Child(the Code of Good Practice on Pregnancy) has been adopted pursuant to section 26 of the BCEA. The purpose of this code is to guide employers and their employees in their workplace safety against future hazards during pregnancy, after child birth and while breast-feeding. The Code of Good Practice on Pregnancy Confirms that no employer should be treated less favourably bacouse ofttheir pregnancy. In essence, the Code of Good Practice on Pregnancy states that employers must guarantee that pregnant workers operate in a secure and risk-free setting. 

Focusing on family leave, an worker has the right to three days ' paid family leave for each annual leave cycle. The worker must, however, have worked for the employer for more than four months and should work for that specific employer at least four days a week in order to qualify for family leave. Such leave may be given when a baby is born or the baby is sick. Since South African labor laws do not provide for paternity leave (leave on the birth of a baby to parents), this is particularly relevant for males.

No employer may require or allow a pregnant worker or worker who nurses her baby to carry out job that is harmful to her or her child's health.

Employers can not afford to treat them as they think to be fair because of the significant legal protections of pregnant staff. Instead, employers need to employ the services of labour law experts to develop and execute comprehensive policies to ensure the welfare of working mothers and minimize the impact of maternity on productivity in the workplace without breaching the law.

THE LABOUR RELATIONS ACT 66 OF 1995

Before the advent of the old Labor Relations Act 27 of 1956, very little, if any, protection against unfair treatment in the workplace was granted to women and pregnant employees. Common law prescribed that women who were absent from work to give birth were in danger of being dismissed, particularly where the employer did not agree to such absence. However, with the aforementioned ancient Labor Relations Act being enacted, the Industrial Court (IC) began to hold such dismissals unfair.

The present Labor Relations Act 66 of 1995 (LRA) deals with reasonable accommodation in the context of unfair dissmissals and now explicitly says that no worker may be unfairly dismissed and subjected to unfair labor practices. Section 186(1) defines in excellent detail the word ' dismissal 'Section 186(1)(c)(i) of the newly revised relates specifically to a dismissal where the employer does not allow the worker to return to job after she was on maternity leave.

Furthermore, section 186(1)(c)(ii) states that a dismissal also happens where an employer refuses to allow a female worker to continue to work if she was absent from job before birth and/or after birth. Section 186(1)(c) of the LRA has a critical significance in that under no conditions can an employer claim the prolonged lack of an employee, As a result of the birth of her newborn child, the employment contract was automatically dissolved.

The LRA also protects women and pregnant workers by stating that no employee should be subjected to unfair labor practices. Section 186(2) defines the term ' unfair labor practice. Section 23 of the Constitution also states that ' Everyone has the right to fair labor practices. ' The Constitution's term ' everyone ' involves non-employees. Therefore, as opposed to the LRA, the Constitution has a broader purpose. The provision of unfair labor practice in LRA section 186(2) protects only ' staff. 'What is ' fair ' will be decided on a case-by-case basis and all conditions must be considered when a decision is taken . It is therefore essential that pregnant females know that if they are not treated fairly, such treatment could possibly amount to an unfair practice of labour Consequently, an unfair labor practice due to pregnancy could lead not only to an unfair claim for labor practice, but also possibly to an unfair claim for discrimination in the EEA.

Employment Equity Act 55 of 1998

The Employment Equity Act addresses workplace equality and works to eliminate inequality and to guarantee that unreasonable discrimination is eliminated. Section 5 of this Act requires employees to adopt every move towards promoting equal opportunities in the workforce by eliminating unfair dismissal in any work policy or practice . Section 6(1) says that, in any work policy or practice, no individual may be descriminated unfairly, directly or indirectly, against an worker for one or more reasons, including ethnicity, gender, sex, pregnancy, marital status, household responsibility, racial or cultural origin, age, handicap, faith, HIV position, consciousness, belief, political view, culture, language and infancy.

Ocupational Health and Enjories Act 85 of 1993

This Act provides for the health and safety of individuals at job and for the health and safety of individuals related to the use of plants and equipment, the security of individuals other than individuals at job from health and safety risks resulting from or in association with the operations of individuals at job. Section 8(1) of this Act also puts an obligation on every employer to provide and sustain a secure and safe working atmosphere for the safety of staff, as far as fairly necessary.

Mine Health and Safety Act 29 of 1996

The employer is also required to provide and sustain a secure and risk-free job atmosphere for employee safety. This is sufficiently wide to include hazards to the reproductive safety of workers. Risk assessments must be carried out.

Conclusion

In conclusion, this chapter provides a comprehensive overview of the constitutional and legislative framework governing the treatment of pregnant employees in South Africa. The analysis underscores the fundamental rights enshrined in the Constitution, particularly the right to equality and human dignity, which form the basis for the protection of pregnant workers. Through legislation such as the Basic Conditions of Employment Act and the Labor Relations Act, significant strides have been made to ensure that pregnant employees are afforded adequate protections, including maternity leave and safeguards against unfair dismissal.

Furthermore, the Employment Equity Act and various occupational health and safety laws play crucial roles in promoting equality and ensuring a safe working environment for pregnant workers. These legal provisions underscore the importance of fair treatment and non-discrimination in the workplace, emphasizing the need for employers to adopt comprehensive policies that prioritize the welfare of pregnant employees.

In essence, the legal landscape outlined in this chapter reflects a commitment to upholding the rights and dignity of pregnant workers, underscoring the importance of fostering a supportive and inclusive work environment for all employees, regardless of pregnancy or parental status.