LEGAL RIGHT TO PREGNANCY
Section 26 of the Basic Conditions of Employment Act 75 of 1997 sets basic standards for the safety and health of pregnant employees. In terms of section 87(1)(b) of the Act, the Minister of Labour has issued a Code of Good Practice on the Protection of Employees during pregnancy and after childbirth. This code provides guidelines on the practical application of section 26. It also sets out the legal requirements relevant to the protection of the health and safety of pregnant and breast feeding employees. However, the code acknowledges that its provisions are general and allowance is made for deviation from its provisions in appropriate circumstances.
Minimum standards are, however, set out in section 26 of the Act. In terms of the minimum standards no employer may require or permit a pregnant employee, or an employee who is nursing her child, to perform work that is hazardous to the health of her child. During an employee's pregnancy and for a period of six months after the birth of her child, if the employee is required to perform night work or her work poses a danger to her health or safety or that of her child and it is practicable for the employer to do so, 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.
In Sheridan v The Original Mary-Ann's at the Colony (Pty) Ltd (1999) 20 ILJ 2952 (LC), the employee had been summarily dismissed by the employer when she was three months pregnant. This was after the employee had objected to the reduction of her shifts as a consequence of which she was then replaced with someone else. The court found that the employer's conduct had been insensitive, despicable and should be condemned. It found further that the employer had demonstrated no compassion at a critical time in the employee's life, and aggravating the employer's conduct was the fact that the employer also failed to give the employee her unemployment card to enable her to claim her maternity benefits. The employer was ordered to compensate the employee for the equivalent of 24 months' remuneration.
lLavery Modise is a partner at Routledge Modise in association with Eversheds