MATERNITY AND PATERNTAL LEAVE: RECENT DEVELOPMENTS AND LEGAL IMPLICATIONS
On 3 October 2025, the Constitutional Court of South Africa delivered a landmark judgment in Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20, wherein it confirmed the finding of constitutional invalidity previously made by the High Court in respect of certain maternity and parental leave provisions contained in the Basic Conditions of Employment Act 75 of 1997 (hereinafter referred to as “BCEA”).
The effect of this judgment is immediate and far-reaching. It establishes a framework of universal parental leave, in terms of which all categories of parents, whether biological, adoptive, or commissioning, are collectively entitled to a total period of four months and ten days’ parental leave. Such leave is to be apportioned between the parents in a manner determined by agreement. In the absence of such agreement, the leave is to be divided as equitably as possible between them.
This development represents a significant shift from the previously gender-differentiated regime and is grounded in constitutional principles of equality, dignity, and the best interests of the child. The Court’s reasoning reflects an intention to eliminate unfair discrimination inherent in affording disproportionate caregiving rights based on gender or biological status, and to promote shared parental responsibilities within modern family structures.
Employers will, in practice, be required to assess and approve leave applications based on the information furnished by employees. To give effect to the shared nature of the entitlement, it is both reasonable and necessary for employers to require employees to submit written declarations specifying the agreed apportionment of leave between co-parents. Such averments serve not only an administrative function but also ensure compliance with the purpose and spirit of the judgment.
Where co-parents are employed by different employers, practical complexities may arise. In such instances, it may be necessary for an employer to verify the leave-sharing arrangement with the co-parent’s employer. However, this raises material concerns in relation to data protection and privacy. Specifically, while an employee typically consents to the processing of their personal information within the employment relationship, the co-parent, being a third party, has not necessarily provided such consent. Accordingly, employers must ensure compliance with the Protection of Personal Information Act 4 of 2013 (“POPIA”) by obtaining the requisite consent from the co-parent prior to processing or verifying any personal information.
Furthermore, although employment relationships are underpinned by mutual trust and good faith, it is prudent for employers to incorporate safeguards within their policies. Such safeguards may include provisions permitting the recovery of overpayments or the institution of disciplinary proceedings in circumstances where an employee has misrepresented material facts relating to the allocation of shared parental leave.
Notwithstanding the progressive nature of these developments, a critical consideration remains the question of remuneration during the period of parental leave. Prior to the judgment, maternity leave generally consisted of four months’ unpaid leave, whereas paternity leave comprised a limited period of paid leave, typically ten days. Following the judgment, parental leave under the BCEA remains, in principle, unpaid but constitutes protected leave.
This gives rise to important practical and legal considerations. While certain employers have historically provided paid maternity leave as an employment benefit, they must now evaluate whether, and to what extent, such benefits can be equitably extended to all categories of parents. This assessment must take into account the operational requirements and financial sustainability of the business. Extending paid benefits universally may impose significant financial burdens, whereas reducing existing benefits may expose employers to legal challenges or adverse employee relations consequences, particularly where such benefits have become entrenched through policy or practice.
The absence of remuneration during parental leave continues to pose socio-economic challenges, particularly for families reliant on a single or primary income earner. To mitigate such hardship, the State, through the Unemployment Insurance Fund (“UIF”), provides maternity benefits to qualifying contributors. Eligible employees may claim benefits of up to approximately 60% of their remuneration, subject to statutory thresholds and contribution histories.
However, the implications of the Constitutional Court’s judgment for the administration of UIF benefits remain uncertain. Questions arise as to whether the UIF framework will be adapted to accommodate shared parental leave claims, and whether non-birthing parents will be entitled to claim similar benefits under the revised dispensation. These uncertainties necessitate further regulatory clarification and may require legislative or policy reform to ensure alignment between labour law and social security frameworks.
In conclusion, while the judgment heralds a progressive and constitutionally aligned approach to parental leave, it simultaneously introduces a range of practical, financial, and regulatory complexities. Employers, employees, and policymakers alike must navigate these developments with due regard to both legal compliance and the broader objectives of fairness, equality, and family welfare. The evolving nature of this area of law underscores the need for ongoing engagement and adaptation as its full implications continue to unfold.