Pregnancy and Contracts
The first thing that employers need to understand is that no person may be discriminated against or dismissed on account of pregnancy. This is stated in paragraph 4.2 of the Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of Her Child. It is also a Constitutional right.
This is also stated in the Labour Relations Act, Section 187(1)(e):
“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.”
- You may not be fired because you are pregnant
- You may not be fired because you intend to be pregnant
- You may not be fired for any reason associated with your pregnancy
- You cannot be forced to sign a contract saying you will not get pregnant on the job
- You cannot be forced to sign a contract that says you will lose your job if you get pregnant
Work Stays the Same
Women who are pregnant are entitled to to four months maternity leave. By law your employer is not obliged to give you paid maternity leave, but you are entitled to four consecutive months of maternity leave.
You cannot be fired when you are on maternity leave. Your job must be held for you. There have been cases where women find themselves unemployed after maternity leave. This is illegal and goes against the South African Labour Relations Act (Basic Conditions of Employment Act ).
In addition, if you go on leave and somebody temporarily replaces you in the workplace, you must get your same job back when you return. It is illegal for the "temp" to take your job permanently and for you to be put in another position.
Contract Stays the Same
In terms of Labour Law it is prohibited to change your job description while you are on maternity leave. It amounts to a unilateral change to the terms and conditions of employment of the employee. The employer has changed a material condition of employment without consulting with the employee, and this places the employer in breach of contract.