We all know that applying to enter the employment market and the stress that accompanies the interview process may be an ordeal all on its own. It is arguable that for a woman, an interview can take a swiftly unjust turn as soon as the seemingly practical, though mostly invasive, question is posed by her interviewer: “are you currently pregnant, or do you intend on having children soon?”
The above may give rise to the following consideration:
Can an employer dismiss an employee who failed to disclose her pregnancy during a job interview? Next is merely a handful of the reoccurring questions posed by many employers and business owners alike: what do I do as the employer when I know a newly appointed employee is pregnant? What are my rights as an employer if I have employed an individual who did not disclose her pregnancy at the time of the job interview? What do I do if a prospective candidate refuses to disclose whether or not she is pregnant?
According to Section 9(3) of the Constitution of the Republic of South Africa, pregnancy is covered as one of the many grounds of non-discrimination. This essentially means that no employee can be directly or indirectly discriminated against based on her pregnancy status.
The Basic Conditions of Employment Act sets out that it is expected of an employee to inform the employer of the requirement to apply for maternity leave at least one month before the anticipated commencement date of the said maternity leave period. This is understood to be approximately eight weeks before the anticipated due date.
In terms of the legislation mentioned above regulating employment terms in South Africa, there is no legislated onus on the employee to disclose her pregnancy status at any other time.
In terms of the above, an employee is not legally obliged to declare to a prospective employer that she is pregnant, nor that she intends to become pregnant, can fall pregnant, nor even whether she is/has previously suffered from a pregnancy-related medical condition.
In terms of Section 187(1) of the Labour Relations Act, the dismissal of an employee because of the employee’s pregnancy, intended pregnancy or any reason related to her pregnancy will be deemed as automatic unfair dismissal. The interpretation hereof is that no employee can be dismissed for being pregnant, nor can she face termination of service for planning or intending on becoming pregnant in the future course.
Furthermore, it will be viewed as an unfair labour practice to demote an employee, refuse a prospective candidate a position, or simply to retract an offer of employment after the fact, on the grounds of an employee either being pregnant or intending to become pregnant in the future.
Regarding legal recourse, if an employer claims to have been deceived by an employee at the time of the interview process, the employer may have to approach the topic of misrepresentation with extreme caution and might only have recourse as far as the deception has a direct link to whether or not the employee can meet the inherent requirements of the job at hand.
Employers who are interested in doing further reading in respect of the above may consult any of the below sources to find substantial protection for pregnant employees in South Africa:
- The Constitution of the Republic of South Africa;
- The Basic Conditions of Employment Act;
- The Employment Equity Act;
- The Labour Relations Act, as well as;
- The Code of Good Practice on the Protection of Employees during Pregnancy and After the Birth of a Child.
In closing, if an employer elects to withhold or retract an offer of employment or to terminate the services of an employee for a reason that is in any way linked to the employee or job applicant’s pregnancy, that employee or job applicant will have grounds to refer the matter on the grounds of unfair discrimination.
The consequences may include monetary awards, compensation and/or the employee’s reinstatement.
Want to know more about the employee’s rights in the workplace during pregnancy? Kindly contact your SEESA Labour Legal Advisor. Alternatively, “SMS” the word “SEESA” to 45776 and we will contact you.
About Author:
Meggan Watson started her career at SEESA in 2015 and is currently a Labour, Consumer Protection and POPI Legal Advisor at SEESA’s Port Elizabeth branch. Prior to joining SEESA she completed her articles in Bloemfontein and her LL.B degree at the University of the Free State in 2012.
Resources:
- The Constitution of the Republic of South Africa
- Basic Conditions of Employment Act, 75 of 1997;
- Labour Relations Act, 66 of 1995.
- https://www.labourguide.co.za/general/514-pregnancy-when-must-an-employee-inform-the-employer-of-pregnancy#:~:text=The%20Basic%20Conditions%20of%20Employment,status%20at%20any%20other%20time.
- “Pregnancy – When must an employee inform the employer of pregnancy?
Employers are often placed in a difficult situation with regard to the pregnancy of an employee.”
- Jan du Toit – The South African Labour Guide.
Website visited on 8th March 2022.
- https://www.news24.com/citypress/voices/pregnant-women-face-workplace-discrimination-20200225
- “Pregnant Women face workplace discrimination.”
- Nomazibulo Tshanga – Co-founder and Managing Director of Ziyana Business Consulting and Training.
Article posted 25th February 2020. Written for City Press.
Website visited on 8th March 2022.
- https://www.forbes.com/sites/tomspiggle/2019/06/27/are-you-pregnant-what-to-do-if-youre-asked-in-a-job-interview/?sh=507d5e883f47
- “Are you pregnant? What to do if you’re asked in a job interview?”
- Tom Spiggle – Senior Contributor and Independent Lawyer.
Article posted 27th June 2019.
Website visited on 8th March 2022.
- https://www.nationalpartnership.org/our-impact/news-room/press-statements/expecting-and-new-mothers-face-avoidable-challenges-in-the-workplace-survey.html#:~:text=New%20moms%20report%20discrimination%20and,commitment%E2%80%9D%20to%20doing%20their%20jobs.
- “Expecting and New Mothers Face Avoidable Challenges in the Workplace, Survey Shows.” Author unknown – The National Partnership for Women & Families.
Article dated 30th January 2014.
Website visited 9th March 2022.