The Constitutional Court judgement on 3 October 2025 ushered in sweeping changes to parental leave, effective immediately. Consequently, many employers’ existing leave policies and practices are likely to be discriminatory. So, what steps should employers take?

In the matter of Van Wyk and Others v Minister of Employment and Labour [2025] ZACC 20, the Constitutional Court (CC) upheld the High Court’s finding that the maternity and parental leave provisions of the Basic Conditions of Employment Act (BCEA), along with the compensation framework under the Unemployment Insurance Act (UIA), are unconstitutional and invalid. Although the Court has suspended this declaration of invalidity for 36 months to give Parliament time to revise the legislation, the Court has mandated interim amendments to the BCEA, some of which carry significant implications for employers and employees.  

Did you know?

The Constitutional Court (CC) temporarily replaced the parental leave provisions of the Basic Condition of Employment Act (BCEA), but not of the Unemployment Insurance Act (UIA).

Parents, other than the birthing mother, are unlikely to be able to claim full UIF benefits envisaged by the CC ruling. 

Employers who have been offering paid maternity leave may face a new financial burden if fathers (or other parents) seek equivalent parental benefits. 

In a leave sharing arrangement, employers will have the burden of establishing the terms of that arrangement, but may require proof thereof. 

Birthing mothers who are in a parental relationship where both parties are employed are only entitled to two months and five days’ parental leave if no agreement on leave sharing is reached.

Employers do not necessarily have to change existing contracts of employment.

Key provisions

Before highlighting the potential challenges, let us consider the key interim provisions of the BCEA: 

1. Parental leave for all parents

If both parents (biological, adoptive, or commissioning) are employed, they are jointly entitled to four months and ten days of parental leave. The leave may be taken in any way the parents agree — concurrently, consecutively, or a combination of both. Each parent must, however, take their portion of leave as a single, uninterrupted period.

2. Sharing of leave

Employed parents may decide how to share their parental leave. If they cannot reach agreement, the leave must be divided as equally as possible between them.

3. Single parent or one employed parent

A single parent, or a parent who is the only employed caregiver, is entitled to four months of parental leave.

4. Adoption age limit

Under the BCEA, adoption leave applies only to adoptive parents of a child under the age of two. The Constitutional Court has found this age cap unconstitutional but has not yet determined what the new limit should be. Until the legislature finalises the amendment, the two-year age cap remains in place.

5. Pregnancy and post-birth leave

Female employees may start parental leave up to four weeks before the expected birth date, or earlier if a medical practitioner or midwife certifies it necessary. After giving birth, an employee may not return to work for six weeks, unless certified fit to do so. These pre- and post-birth periods form part of the total parental leave entitlement.

6. Miscarriage or stillbirth

An employee who has a miscarriage during the third trimester, or gives birth to a stillborn child, is entitled to six weeks’ parental leave after the event, even if the leave had not yet started at that time.

7. Adoption and surrogacy

Adoption leave may begin when an adoption order is granted, or when a court places a child with a prospective adoptive parent pending the final order. Commissioning parental leave (for surrogacy) may begin on the date the child is born under a surrogate motherhood agreement.

8. Notice requirements

Biological parents must inform their employer in writing of their intended start and return dates at least four weeks before the commencement of leave, or as soon as reasonably practical. For adoption or commissioning leave, the notice period is one month, unless it is not reasonably practical to comply.

Challenges for employers and employees

Achieving parity among all categories of parents may seem straightforward in principle, but in practice, employers and employees are likely to encounter several challenges. Complications may arise in the following areas:

1. Implementing the changes

Although the interim amendments to the BCEA are clear, the final legislative amendments may differ from the CC’s wording. Any updates to contracts, policies, or employee communications should explicitly state that they are subject to further changes to the BCEA. Except where employers currently offer paid leave to birthing mothers (discussed below), it is in our view unnecessary to sign new employment contracts or to draft addenda to existing contracts. The best way to go about it may be affected by various factors, but a formal communication outlining the interim amendments and their temporary application should suffice in most circumstances. 

2. UIF entitlements for non-birthing parents

The Constitutional Court (CC) did not amend the Unemployment Insurance Act (UIA), due to the potential financial impact and regulatory complexity. Instead, it left the matter to the legislature to determine the scope of UIF benefits for employed parents in a non-discriminatory manner. At present, the UIF system is unlikely to accommodate new entitlements. While non-birthing parents – such as fathers, adoptive parents, or commissioning parents – are now in principle entitled to significantly more leave than before, it is unlikely that UIF claims from these categories of parents will be entertained in the near future. 

3. Paid leave conundrum

Employers are not legally obligated to pay employees during parental leave. However, where paid maternity leave has traditionally been provided to birthing mothers, withholding equivalent benefits from other categories of parents may constitute unfair discrimination. Extending such benefits to all parents, while promoting equity, could impose a substantial financial burden on employers. In response, some employers might consider reducing existing maternity benefits to offset the cost of broader parental entitlements. 

Any proposed changes to contractual terms, leave policies, or workplace practices should be preceded by a consultative process aimed at achieving consensus with employees. Where agreement cannot be reached, employers may be confronted with difficult decisions regarding implementation of such changes.

4.    Sharing of leave between parents

Where parents choose to share parental leave, employers may require formal proof of a leave-sharing agreement. This would ensure clarity and prevent overlapping claims.

5.    Disputes over leave allocation

If parents cannot agree on how to divide parental leave, the interim provisions stipulate that leave “shall be apportioned between the parents in such a way that each parent’s total parental leave is as close as possible to half of four months and ten days, provided that such leave is completed within a period of four months from the birth of the child or, where applicable, from the date referred to in section 25B(2) or 25C(2)” (The latter sections refer to the commencement dates for adoptive or commission parents). Where parents are unable to reach an agreement, employers should allocate leave in accordance with these guidelines. 

6.    Potential for abuse

The greatest risk for abuse lies with non-birthing parents, where both parties are employed and they are unable to reach a leave-sharing agreement. For example, a father who is not actively involved in family life or supporting the birthing mother may nonetheless try to claim parental leave. Whether he is entitled to such leave would depend on whether he is in a “parental relationship” as envisaged by the Children’s Act of 2025, which might not be easy for an employer to establish. In terms of the interim leave-sharing provisions, the employer may be under pressure to grant the father up to two months and five days of leave in such cases.  

On the other hand, the birthing mother’s share of the leave would then be limited to two months and five days. Although the employer may agree to the mother taking additional leave, she may not be eligible for UIF benefits for the full duration of her absence. 

Other forms of misuse may arise, requiring vigilance from both employers and the UIF.

This is uncharted territory, and the practical implications of the interim and final amendments to the BCEA and UIA will only become clear over time. Employers who revise their policies should do so.

The CC judgement can be found here.

For guidance on how to implement the changes, email us at info@labourwise.co.za

Written by Jan Truter for www.labourwise.co.za