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Amelia Berman of Norton Rose Fulbright
30 Apr 2015 00:00
Equal footing: In the United Kingdom, new parents have the option of sharing up to 50 weeks of leave. Will South African fathers be granted similar rights? (Photo: Peter Macdiarmid/Getty)
On April 5 2015 the law on shared parental leave came into effect in the United Kingdom, giving parents of a newborn child or an adopted child up to 50 weeks of leave and 37 weeks of pay that can be shared between parents. This parental leave is in addition to the compulsory initial two weeks’ leave afforded to the mother.
Shared parental leave, a concept that already exists in many Scandinavian countries, can be taken for one period or split into different segments with periods of work in-between, but must be taken by the parents within a year of the baby’s birth or adoption.
Parents can also take time off simultaneously to look after their newborn child.
South Africa is in stark contrast, with four months’ unpaid maternity leave afforded to mothers and a mere three days of family responsibility leave afforded to fathers by the Basic Conditions of Employment Act.
According to UK Deputy Prime Minister Nick Clegg, the motivation for the law is to promote equality in the workplace as well as in the home. He said: “For too long, mums have been told their place is at home with their child while dads return to work. I want parents to choose for themselves how to balance work and family.”
Previously in the UK, fathers were entitled to one or two weeks’ paid ordinary paternity leave, or up to 26 weeks’ paid additional paternity leave — but only if the mother or co-adopter returned to work.
Although the UK law has been criticised for being too burdensome on employers, if used correctly it can promote more equality in the workplace and can shatter the traditional stereotypes of men as breadwinners and women as caregivers.
The South African government has already made strides to push the empowerment of the women, which is evident in the call for at least 50% representation of women in decision-making structures as prescribed by the Women Empowerment and Gender Equality Bill, which was passed by the National Assembly in March 2014.
Extended shared parental leave would help realise this aim.
The UK’s 50 weeks of leave may be excessive if considered alongside the statutory minimum prescribed maternity and family responsibility leave in South Africa.
However, considering that equality is enshrined in section 9 of the Constitution and, more particularly, gender, sex and marital status are prohibited as grounds for discrimination, it is a matter of time before parental leave is extended statutorily to men on the birth or adoption of a child in South Africa.
What the law says when it comes to paternity leave in South Africa
The Basic Conditions of Employment Act (No 75 of 1997), as amended, includes a provision for family responsibility leave in section 27.
Subsection 27(2)(a) determines that an employee is entitled to family responsibility leave when his or her child is born. Therefore, a father is included.
“Paternity leave” is merely a term that is sometimes used to refer to this subsection of the Act, although the Act uses the term “family responsibility leave”.
Nothing prohibits an employer from including an additional special category of leave in the company’s leave policy.
Such categories are quite common in the leave policies of foreign companies.
An employee who has been employed for at least four months and who works at least four days a week for the same employer may take at least three days of paid family responsibility leave during each leave cycle. Family responsibility leave is granted only when an employee’s child is born or is sick, or in the event of the death of an employee’s spouse, life partner, parent, adoptive parent, grandparent, child, adopted child or grandchild, or an employee’s sibling.
An employer may request an employee to provide reasonable proof of events such as these before the employee is paid. In other words, after the employee’s child is born a birth certificate and, possibly, proof of paternity should be provided to the employer.
An employee may take family responsibility leave for a whole day or part of a day.
The leave expires at the end of the annual leave cycle and cannot be accrued.
When an employee takes family responsibility leave, he or she must be paid the usual wages for the day or days in question on the normal payday. — Phil Davel, Solidarity Legal Services
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