South Africa: Unintended consequences of Van Wyk and practical implications for employers

The Constitutional Court’s judgment in Van Wyk and Others v Minister of Employment and Labour restructures statutory parental leave under the Basic Conditions of Employment Act (BCEA) and, in parallel, affects entitlements under the Unemployment Insurance Act (UIA).

The Court declared certain provisions of the BCEA and UIA invalid because they unfairly discriminate between men and women and different categories of parents in terms of the duration of leave afforded to them and the extent and duration of benefits provided.

It suspended the declarations of invalidity for 36 months to allow Parliament an opportunity to cure the defects in the legislation and ordered an interim reading-in for the BCEA, with immediate effect from the date of the order, 3 October 2025. For more detail on the judgment itself, see part 1 of our series on Van Wyk and parental leave.

Leave entitlements following the Court’s reading-in

The Court’s reading-in is far-reaching. It effectively re-drafted the parental leave sections of the BCEA.

In practice, the effect of the Court’s reading-in is that the separate statutory categories of maternity, parental, adoption and commissioning parental leave are, for the interim period, consolidated into a single parental leave framework.

A single parent, or a parent who is the only employed party in a parental relationship, is entitled to at least four consecutive months’ unpaid parental leave. Where both parties are employed, they are entitled to share four months and 10 days’ unpaid parental leave. Certain statutory protections remain in place for birth mothers: a birth mother is legally prohibited from working for six weeks after birth unless certified fit to do so, and she is entitled to commence parental leave any time from four weeks before birth.

While the judgment reflects an enlightened approach to caregiving as a shared responsibility between parents and affirms the role of fathers, adoptive parents and commissioning parents, including those in same-sex relationships, it may have unintended consequences for employees and employers. One of the most notable consequences is that, to comply with the interim reading-in order, employers may now have to roll-back the paid benefits that it previously offered to parents, particularly mothers.

Cost implications and impact on productivity

Many employers, particularly large employers, have over the years adopted maternity leave policies in terms of which they provide paid maternity leave to mothers, although they were under no legal obligation to do so. Such policies are aimed at attracting and retaining female talent by providing favourable benefits to mothers in circumstances where the amount of UIF benefits that can be claimed is generally small.

When changes to the BCEA came into effect in January 2020, introducing new entitlements to parental leave, adoption leave and commissioning parental leave, many employers extended paid benefits to these other categories of parents, albeit commensurate with their statutory entitlements (which were shorter than statutory maternity leave).

In workplaces where maternity leave benefits have historically been structured more generously than paternity and other forms of parental leave, the Van Wyk judgment now creates immediate alignment challenges. Employers may now need to afford the same paid leave benefits to all categories of parents or run the risk of potential unfair discrimination claims.

Equalising the payment terms of the policy may come with substantial additional costs for employers. This is compounded by the fact that a man, for example, can theoretically be a father on more than one occasion in one year and may accordingly demand paid parental leave from his employer on each of these occasions, whereas a woman can only do so once. In addition, a man can continue to father children through to retirement age, whereas a woman will generally cease having children much sooner. The financial implications of providing paid parental leave to fathers can accordingly be significant. Absences due to parental leave – which may increase where such leave is paid – may also have resultant productivity impacts.

The inevitable result of these cost implications is that employers are reconsidering whether they should pay for any parental leave and the initial response may therefore be to remove payment all together.

What further complicates matters is that during this interim period, UIF benefits remain limited in scope and quantum, even though entitlement to leave may have expanded for some parents. This is because the Court did not order any interim reading-in for the UIA, to match the amendments to the BCEA. Accordingly, while a father may be entitled to seek additional time off in line with the Court’s order, he can still only claim UIF benefits for a maximum of 10 consecutive days.

While the immediate reaction from employers may be to withdraw all paid parental leave benefits, there are alternative approaches that could be considered to enable the retention of certain paid parental benefits without incurring excessive costs.

Options for structuring paid parental benefits

The first issue employers should carefully consider is whether there may be any justifiable grounds upon which to differentiate between men and women, or categories of parents, considering the particular context and circumstances in which they conduct business.

Where there are rational and fair reasons to justify differentiation in an employer’s policy, an employer should be able to successfully defend an unfair discrimination claim. Examples that could be explored include, first, payment for only the six-week period during which a biological mother is legally precluded from working, or second, extended periods where employees who perform hazardous work cannot work due to health and safety concerns, and third, designing payment to women (as a ‘designated group’ in terms of the Employment Equity Act) as an affirmative action measure.

Other options that could limit the extent of the financial impact include the following:

• limiting the number of childbirth/ adoption events for which the employer affords paid parental leave, to one or two occasions during the employee’s employment with the employer;

• capping the duration of paid parental leave – for example, a policy could provide for up to two and a half months’ paid leave, with any further leave taken by an employee being unpaid;

• reducing the amount of the paid benefit so that it is only a portion of salary and not 100% for the full duration (or only a part) of parental leave; and

• limiting paid parental leave benefits to only lower-level employees or introducing a sliding scale in terms of which lower-earning employees receive a greater percentage of their salary than higher-earning employees while on parental leave (similar to the way UIF is structured), as a way to better support those who are more financially dependent on the benefit.

Although the above approaches are intended to restrict the availability of paid parental leave and do not exempt employers from the obligation to provide unpaid leave as mandated by law, they may also serve to mitigate productivity losses. This is because employees may be less likely to take parental leave if it is not fully remunerated.

Conclusion

The Van Wyk judgment has raised several legal and practical difficulties for employers to navigate, particularly those who have historically provided enhanced parental leave benefits. Ultimately, the evolving legal landscape necessitates that employers take a thoughtful approach to reviewing and updating their leave policies.

By carefully balancing legal compliance, business needs, and the well-being of employees, organisations should aim to craft parental leave benefits that are both equitable and supportive for employees, and operationally and financially sustainable.

Helen Wilsenach is Head of Employment and Benefits, Talita Laubscher a partner, and Graham Damant a Senior Consultant in Bowmans’ Johannesburg office Employment and Benefits practice. Chloë Loubser is a knowledge and learning lawyer in the Dispute Resolution Department of Bowmans’ Cape Town office and a member of the Employment and Benefits practice.