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Identifying the rights of breastfeeding and pregnant employees in the workplace

Article written by Tanya Verdoorn (Labour Legal Advisor SEESA – Pretoria)

Since the democratic elections in 1994, there has been an increase of females joining the workforce. The aforementioned influx resulted from legislative support that promoted access to education and employment for women and economic and financial circumstances that necessitated women to earn an income. The government turned its attention to laws that promoted gender equality.

A study done in Cape Town from April to August 2018, conveyed that employers and employees are blissfully unaware of pregnancy-related laws in the workplace other than the four months’ maternity leave that female employees are entitled to. The Code of Good Practice in terms of the Basic Conditions of Employment Act 75 of 1997, provides protection and rights to women breastfeeding when returning to work after maternity leave.

  • Employers are required to evaluate the workplace (prior to an employee returning after maternity leave) and the employee’s position in the workplace to ensure that the working environment does not pose any physical, ergonomic, chemical or biological hazards to the health and safety of the breastfeeding employee.
  • Employers are furthermore required to grant breastfeeding employees, two (2) 30- minute breaks in a day to either attend to breastfeeding or the expressing of milk. An employer is; only obliged to grant an employee such breaks during the first 6 months after the birth of a child.

In a recent Labour Appeal Court case during May 2020, Mahlangu v Samancor Chrome Ltd (JA117/2018) 2020 ZALAC 14, the employee, who was an underground heavy duty truck driver, fell pregnant for the second time in a three-year cycle but was immediately relieved of her hazardous responsibilities. Company policy; however, stated that if an employee falls pregnant twice within a three-year period, the employee is not entitled to paid maternity leave. The policy further stated that the employee should be placed in an alternative position for the time being, even though in this case, the employer failed to do so and placed the employee on unpaid maternity leave, after obtaining knowledge of her pregnancy, even prior to her commencing actual maternity leave.

The Labour Appeal Court found that the employer discriminated against the employee on the basis of pregnancy based on the company policy and by not placing the employee in an alternative position. The employer was ordered to pay the employee her salary for the months she was put on unpaid leave.

The Code of Good Conduct on the Protection of Employees during Pregnancy and after the Birth of a Child clearly states that no person, including the father of a child, may be unfairly discriminated against on the grounds of pregnancy. This constitutional right is entrenched in Sections 9 (3) and (4) of the Constitution of the Republic of South Africa.

Therefore, it is suggested that employers implement a breastfeeding policy in the workplace stipulating the rights of breastfeeding employees so as to show support to mothers returning to work after maternity leave and to avoid any potential discrimination claims. Furthermore, it is advisable to identify a private space within the workplace where employees can attend to breastfeeding and/or expressing and the storage of breast milk.

Contact your SEESA Legal Advisor to obtain advice regarding pregnant and breastfeeding employees and their protection in the workplace. Let us assist your business with the implementation of a breastfeeding policy.


About The Author:

Tanya Verdoorn started her career at SEESA in 2020 and is currently a Labour legal advisor at Pretoria. Tanya is an admitted attorney who obtained her LLB and LLM in Environmental Law from the North-West University, Potchefstroom.

References:

Legislation
The Code of Good Practice in terms of the Basic Conditions of Employment Act 75 of 1997

Case Law
Mahlangu v Samancor Chrome Ltd (JA117/2018) 2020 ZALAC

Internet Sources|
Claassen A “Pregnancy and the Employer” The South African Labour Guide 2021 available at https://www.labourguide.co.za/pregnancy-and-the-employer

Louw L 2020 “New case deals with discrimination and pregnancy in the workplace in South AfricaBusinesstechavailableat https://businesstech.co.za/news/business/418839/pregnancy-discrimination-in-the-workplace-in-south-africa-new-labour-appeal-court-decision/

Israelstam I “Pregnant mothers heavily protected” Labour Law Management Consulting 2020 available at https://www.labourlawadvice.co.za/pregnant-mothers-heavily-protected/

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