What Changed in the Parental Leave Judgment?

The case concerned sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act, together with corresponding provisions of the Unemployment Insurance Act.

Before the judgment, the legislation provided different periods of leave depending on whether an employee was:

• A birth mother.
• The other biological parent.
• An adoptive parent.
• A commissioning parent in a surrogacy arrangement.

The Constitutional Court found that this system unfairly discriminated between mothers and fathers and between different categories of parents.

The Court confirmed that the unequal allocation of leave affected the rights to equality and dignity. It also limited parents’ ability to decide how they wished to divide childcare responsibilities within their own families.

The judgment therefore introduced an interim arrangement while Parliament develops and adopts permanent replacement legislation.

How Much Parental Leave Is Now Available?

Under the interim arrangement, employed parents have access to a combined period of:

Four months and 10 days of parental leave.

This total period may be shared between employed parents according to their agreement.

It is important for employers and employees to understand that this does not ordinarily mean that each parent receives four months and 10 days. The entitlement is a combined period that the parents may divide between themselves.

For example, parents may agree that:

• One parent will take three months and the other will use the remaining leave.
• The parents will divide the leave approximately equally.
• One parent will use most of the leave because of the family’s work or caregiving arrangements.

Where only one parent is employed, that employed parent is entitled to use the full period of four months and 10 days.

Special Consideration for the Birth Mother

Although the judgment promotes equal parenting, it also recognises the physical realities of pregnancy and childbirth.

In the case of a biological birth, the birth mother must receive preference regarding the portion of leave needed for preparation before birth and physical recovery after birth.

Employers should therefore avoid applying the shared entitlement in a way that deprives a birth mother of reasonable leave associated with childbirth and recovery.

The remaining leave may be divided between the parents according to their agreement and the requirements of the interim legal arrangement.

What Happens When Parents Cannot Agree?

The judgment anticipates situations in which two employed parents may be unable to agree on how the leave should be shared.

Where there is no agreement, the available parental leave should be apportioned so that each parent’s total leave is as close as reasonably possible to half of the combined four months and 10 days.

This means that employers may need a process through which employees:

• Confirm whether the other parent is employed.
• State how the leave will be divided.
• Provide the intended commencement and return dates.
• Confirm whether the parents have reached an agreement.
• Update the employer if the proposed allocation changes.

Employers should record the employee’s declaration without unnecessarily involving themselves in private family arrangements.

Biological Fathers and Parental Responsibilities

A father seeking to use the parental leave entitlement must have assumed parental rights and responsibilities in relation to the child as contemplated in the Children’s Act.

Employers may therefore need to include an appropriate declaration in their application process confirming that the employee has assumed the relevant parental responsibilities.

Requests for documentation should remain reasonable, relevant and respectful. Employers should avoid applying requirements selectively or creating unnecessary obstacles for fathers seeking to participate in childcare.

Adoptive Parents and the Removal of the Age Restriction

The Constitutional Court also addressed the previous restriction that applied parental leave and related provisions only where an adopted child was below the age of two.

The Court found that this distinction unfairly discriminated between adoptive parents and adopted children based on the child’s age.

Adopted children may require significant care, adjustment and parental support regardless of whether they are younger or older than two years.

Employers should therefore remove the previous under-two age restriction from parental leave policies and application forms.

Commissioning Parents in Surrogacy Arrangements

The judgment also requires equal recognition of commissioning parents whose children are born through a valid surrogacy arrangement.

A modern parental leave policy should not assume that every family consists of a birth mother and a biological father living within one household.

Policies should make appropriate provision for:

• Biological parents.
• Adoptive parents.
• Commissioning parents in surrogacy arrangements.
• Families in which only one parent is employed.
• Parents employed by different organisations.
• Parents who work for the same employer.

Inclusive language helps employers apply parental leave rules consistently and reduces the risk of unfair discrimination.

The 36-Month Suspension Period

The Constitutional Court suspended the declaration of constitutional invalidity for 36 months to allow Parliament an opportunity to correct the relevant legislation.

The suspension does not mean employers should continue applying the previous unequal leave framework without change.

The Court introduced an interim reading of the Basic Conditions of Employment Act that applies while Parliament works on replacement legislation.

During this period, employers should:

• Update their parental leave policies.
• Apply the interim parental leave entitlement.
• Monitor legislative developments.
• Review UIF guidance as it becomes available.
• Update policies again when final legislation takes effect.

Because the legal framework may develop during the 36-month period, policies should include wording allowing the employer to amend procedures where legislation, regulations or official guidance changes.

What Employers Should Do with Existing Employment Contracts

Some employment contracts may still refer to the previous maternity, parental, adoption or commissioning-parent leave entitlements.

Employers should not rely on outdated contractual wording to deny an employee the minimum leave recognised by the Court’s interim order.

It may not be practical to renegotiate every employment contract immediately. A properly drafted and communicated policy update can provide an efficient mechanism for implementing the new framework across the organisation.

Employers should nevertheless review:

• Standard employment contract templates.
• Employee handbooks.
• Leave policies.
• Collective agreements.
• HR application forms.
• Payroll procedures.
• Letters of appointment.
• Manager and supervisor guidance documents.

New contracts should use updated, inclusive wording rather than repeating the previous unequal categories of leave.

Updating the Company’s Parental Leave Policy

Updating the central parental leave policy is generally the most practical way to implement the judgment across the organisation.

The revised policy should explain:

• Who qualifies as a parent.
• The total period of available leave.
• How employed parents may share the leave.
• What applies when only one parent is employed.
• The preference afforded to a birth mother around childbirth and recovery.
• What happens if parents cannot agree on the allocation.
• How employees must apply for leave.
• What declarations or supporting documents are required.
• How changes to an approved leave plan will be handled.
• How payroll and UIF-related processes will be administered.

The policy should also make it clear that leave approval and leave benefits are related but distinct matters.

The employment leave entitlement may apply even where the administration or payment of UIF benefits has not yet been fully aligned with the new framework.

Suggested Parental Leave Policy Clause

Employers may consider adapting the following clause to suit their own workplace:

This wording should be reviewed against the employer’s existing contracts, collective agreements, payroll systems and operational requirements before implementation.

Suggested Notice to Employees

Employers should communicate the policy changes clearly rather than expecting employees to interpret the judgment themselves.

Managing Parents Employed by Different Companies

One of the most challenging administrative aspects of the new parental leave framework arises where the parents work for different employers.

One employer will not ordinarily have direct access to the other employer’s attendance, payroll or leave information.

The employee should therefore submit a written declaration confirming:

• Whether the co-parent is employed.
• The amount of leave each parent intends to use.
• The proposed leave dates.
• That the combined allocation does not exceed the available period.
• That the employee will inform HR if the arrangement changes.

Employers generally cannot force an unrelated employer to coordinate its internal records with them. A clear employee declaration provides a practical basis for administering the request.

The employer should retain the declaration with the leave application and process the employee’s personal information confidentially.

Managing Parents Employed by the Same Company

Where both parents work for the same organisation, HR may be able to coordinate the leave more directly.

The employer should still avoid deciding how the parents must divide their leave unless the parents cannot agree or operational discussions are required.

HR should:

• Obtain a joint or matching leave-allocation declaration.
• Confirm the number of days allocated to each employee.
• Record the leave against the same child or placement.
• Ensure that the combined leave does not exceed the available entitlement.
• Maintain confidentiality.
• Coordinate temporary staffing or operational cover.

Employers should apply the same procedural requirements to employees regardless of seniority, gender, department or family structure.

Creating a Central Parental Leave Register

A central parental leave register can help HR administer the new entitlement accurately.

The register may include:

• The employee’s name and employee number.
• The type of parental relationship.
• The child’s date of birth, adoption or placement.
• Whether the other parent is employed.
• The total leave allocated to the employee.
• The approved commencement and return dates.
• Any changes to the original leave plan.
• Payroll and UIF documentation submitted.
• The remaining leave balance.

Access to the register should be restricted to authorised HR and payroll personnel because it contains personal and family information.

UIF Benefits and Parental Leave

Employers must distinguish between the employee’s right to take parental leave and the employee’s ability to receive UIF benefits during that leave.

The Constitutional Court did not impose a detailed interim reading into the UIF provisions because it did not have sufficient information regarding the calculation and financial implications of the benefits.

This means that UIF administration may not immediately align neatly with the shared leave structure introduced under the Basic Conditions of Employment Act.

Employers should avoid promising employees a particular UIF payment unless that payment has been confirmed through the applicable UIF process.

HR and payroll teams should:

• Monitor official UIF guidance.
• Keep approved leave periods clearly recorded.
• Provide employees with required employment documentation.
• Avoid confusing unpaid statutory leave with employer-funded paid leave.
• Check whether collective agreements or company benefits provide more favourable terms.
• Update internal procedures when legislation or official UIF processes change.

Is Parental Leave Paid by the Employer?

Statutory parental leave and employer-paid parental leave are not automatically the same.

An employer’s obligation to pay remuneration during leave may depend on:

• The employment contract.
• The employer’s leave policy.
• A collective agreement.
• An applicable bargaining-council arrangement.
• Existing company benefits.
• The employee’s eligibility for UIF benefits.

Some employers may provide paid leave that is more favourable than the statutory minimum. Others may provide unpaid leave while assisting the employee with UIF documentation.

Employers should state the payment position clearly in the parental leave policy so that employees understand the difference between leave approval and income replacement.

Operational Planning for Extended Parental Leave

The expanded and shareable leave arrangement may require more detailed workforce planning, particularly in manufacturing environments.

A prolonged absence may affect:

• Production staffing.
• Shift arrangements.
• Machine-operator coverage.
• Technical and maintenance support.
• Quality-control functions.
• Supervisory responsibilities.
• Payroll and benefits administration.

Employers should plan for temporary coverage without discouraging employees from exercising their lawful rights.

Operational inconvenience alone should not be used to reject a qualifying parental leave entitlement.

Practical preparation may include:

• Requiring reasonable advance notice where possible.
• Cross-training employees.
• Planning temporary replacements.
• Recording handover responsibilities.
• Agreeing on appropriate communication during the absence.
• Preparing a structured return-to-work process.

Avoiding Discrimination and Inconsistent Treatment

These Parental Leave Policy Updates in South Africa are rooted in equality and dignity.

Employers should not:

• Assume that the mother must take most of the leave.
• Discourage fathers from applying for extended leave.
• Treat adoptive parents less favourably than biological parents.
• Apply unnecessary age restrictions to adopted children.
• Treat commissioning parents as less legitimate parents.
• Penalise employees in promotion or performance decisions because they exercised parental leave rights.
• Apply different documentary standards without a valid reason.

Managers should be trained to process applications objectively and to avoid outdated assumptions about gender and caregiving.

Best-Practice Checklist for Employers

Employers can prepare for the updated parental leave framework by taking the following steps:

• Review the existing parental leave policy.
• Remove unequal gender-based leave categories.
• Remove the age restriction for adopted children.
• Include biological, adoptive and commissioning parents.
• Explain the combined four-month-and-10-day entitlement.
• Provide for the birth mother’s childbirth and recovery needs.
• Create a parental leave allocation declaration.
• Update HR and payroll forms.
• Create a central leave register.
• Train HR personnel and managers.
• Explain the distinction between leave and UIF benefits.
• Communicate the new procedure to employees.
• Monitor legislative and UIF developments.
• Obtain professional labour relations guidance.

The PCASA Advantage

Implementing Parental Leave Policy Updates in South Africa involves more than changing the number of days recorded in an employee handbook.

Employers need policies that are legally informed, administratively workable and appropriate for their operational environment.

PCASA is an Employers’ Organisation exclusively representing members in South Africa’s plastics industry.

PCASA can assist members with:

• Reviewing parental leave policies.
• Drafting updated policy clauses.
• Preparing employee notices.
• Creating leave-allocation declarations.
• Reviewing employment-contract templates.
• Training HR teams and managers.
• Managing difficult leave applications.
• Interpreting new labour law developments.
• Aligning policies with workplace procedures.
• Providing ongoing employer representation and support.

Our guidance helps employers navigate changing workplace laws while maintaining fair, practical and consistent employment practices.

Update Your Parental Leave Policy Without Delay

The Constitutional Court judgment marks an important shift from maternity-centred leave towards a more inclusive parental leave framework.

Employers should recognise different family structures, allow parents greater freedom to divide caregiving responsibilities and ensure that policies do not unfairly favour one category of parent over another.

At the same time, companies need clear application procedures, declarations, payroll records and operational plans to administer the shared entitlement effectively.

A carefully drafted policy will help protect employee rights while giving HR and management a workable process for handling leave requests.

PCASA assists plastics-industry employers with practical policy updates, employee communication, labour law training and ongoing compliance support.