Recruitment News
SA law protects working pregnant women
By iol jobs
28 September 2009
Many employers are reluctant to hire women due to the possibility of them falling pregnant and many are still inclined to terminate the services of a pregnant woman, often under the guise of "retrenchment due to operational requirements".
Often your employer starts to performance-manage you or - worst-case scenario - you are disciplined for misconduct which is unfounded and unsubstantiated, simply in an attempt to push you out or perhaps in the hope that you will elect not to return to work after your confinement and will resign.
The Constitution provides an imperative to look after and cherish women and this is reinforced in the Labour Relations Act (LRA) where, in terms of section 187 (e) any dismissal due to pregnancy or reason related to pregnancy is an automatically unfair dismissal.
That means that if you can prove that your employment has been terminated due to pregnancy or any reason related to pregnancy, you may be entitled to compensation equivalent to 24 months' salary.
Are you under any duty to disclose your pregnancy status at the time of being interviewed for a prospective job?
A prospective employer cannot discriminate against you as a woman in general as this will be unconstitutional discrimination which is prohibited by the Constitution of South Africa and the Employment Equity Act.
In other words a prospective employer should not ask you any questions regarding your pregnancy status or indeed the possibility of future pregnancy unless this is directly applicable having regard to the inherent requirements of the job. A case in point is Whitehead vs Woolworths.
Are you obliged to disclose this status? Obviously if the inherent requirements of the job require you not to be pregnant a duty of disclosure may arise but each and every case needs to be considered in respect of the surrounding circumstances.
What if you are employed and subsequently fall pregnant; are you then obliged to disclose your status?
A duty of disclosure may arise as it is relevant to the employer's accommodation of you during your confinement period.
In terms of the Basic Conditions of Employment Act, an employer is obliged to release you from your duties and book you off for maternity leave four weeks prior to your confinement and for a period of eight weeks subsequent to the confinement.
This will obviously mean that your employer needs more often than not to find someone to temporarily replace you during your maternity leave and may require you to train your temporary replacement, so it becomes necessary for both you and your employer respectively to make arrangements timeously.
It is also in your best interest to advise your employer as soon as reasonably possible to ensure that you are sufficiently accommodated.
As a pregnant woman you also have other benefits available to you other than protection under the LRA in that not only is the employer obliged to retain your services during the prescribed statutory maternity leave of four weeks before confinement and eight weeks following confinement (albeit unpaid unless your contract of employment/ the company's polices/ any collective or main agreement provide otherwise) you are entitled to claim Unemployment Insurance Fund benefits (unemployment maternity benefits).
It is important to remember that your pregnancy is not an illness or disability nor is it in itself a reason for redundancy/dismissal and an employer must not treat it as such.
South African courts do no look kindly upon any employer who infringes your constitutional and legal rights.
Kevin Allardyce is a labour lawyer. Contact him on 011 694 4060 or kevin@allardyce.co.za.
Source: http://news.ioljobs.co.za/article_view.php?fArticleId=5181448
