It is common cause between employers and employees alike that pregnant employees in the labour field are more protected than others. A good example of this is stipulated in Section 26(2) of the Basic Conditions of Employment Act 75 of 1997.
A simple yet vitally important act for any business or employee respectively, few understand what dire consequences the act might have on a business if not carefully followed or considered by the employer. A certain stipulation in the act, namely section 26, places strict obligations on an employer to ensure that pregnant employees are afforded more sensitive protection than those that are not.
What does the Act say?
Section 26 of the Basic Conditions of Employment Act indicates the following:
“26. (1) No employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child.
(2) During an employee’s pregnancy, and for a period of six months after the birth of her child, her employer must offer her suitable, alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if—
(a) the employee is required to perform night work, as defined in section 17(1) or her work poses a danger to her health or safety or that of her child; and
(b) it is practicable for the employer to do so.”
Sub-rule (1) is vaguely clear and easily understood by many in the field. Sub-rule (2) on the other hand is a different tale altogether. Sub-rule (2) in section 26 clearly places an obligation on the employer to ensure that during an employee’s pregnancy and for a period of six months after the birth of her child, the employer must offer the employee suitable and alternative employment if the employee is required to perform night work. As per Section 17(1) of the Act, ‘‘night work’’ means work performed after 18h00 and before 06h00 the next day.
If employers are to take any cognisance from the above, it can merely be summarised by two words that are quoted in the act, namely “must” and “no less favourable”. The word “must” is a strong indication that employers are obligated to ensure that employees, even after the birth of their children for a period of six months, are further protected from performing duties at night. Should the employer adhere to ensuring that such employees do not perform night duties, the employer must also ensure that the employee’s terms and conditions of employment are no less favourable than her ordinary terms and conditions.
An example at hand may be that the employee is required to work fewer hours in order to avoid night work, yet this does not mean that the employee should be paid a wage or salary that is lower to that which she ordinarily receives. Unfortunately, if employers fail to adhere to the stipulations which have been pointed out, it may lead to unfair labour practices or even constructive dismissal claims being lodged at the CCMA, which in effect may lead to adverse awards being granted against employers. Employers are therefore urged to contact their employer’s organisations and/or labour consultants at all times before making any decisions which may concern pregnant employees.
Article by: Noel Strating
CEO Dispute Resolution Official – Bloemfontein