An important judgment on maternity leave for men was handed down by the Durban Labour Court on 26 March 2015, in the case of Mia v State Information Technology Agency (Pty) Ltd, which considered whether the State, acting as employer, had unfairly discriminated against a male employee who had applied for maternity leave in terms of the State Agency’s Maternity Leave Policy.

Briefly, the facts of this matter were that the male employee had entered into a civil union with a same-sex partner in terms of the Civil Union Act, 2006.

A year after the union, the employee and his spouse entered into a surrogacy agreement, which was confirmed as an order of the High Court.

In terms of the surrogacy agreement, from the point of birth the employee and his spouse would be deemed to be the parents of, and responsible for, the child.

In anticipation of the birth of the child, the employee applied to his employer for paid maternity leave. The employer’s policy provided for paid maternity leave for a maximum of four months. The employee was initially refused maternity leave on the grounds that the employer’s policy and the Basic Conditions of Employment Act only covered “female” employees and was silent on the issue of leave for surrogate parents.

The employer eventually agreed to grant the employee two months’ paid adoption leave and two months’ unpaid leave.

When the matter came before the Labour Court, the employer denied its policy was discriminatory and the word “maternity” defined the character of the leave entitlement and, as such, it was a right to be enjoyed by female employees only.

The employer further argued that its maternity leave policy was designed to cater for employees who give birth, based on the understanding that pregnancy and childbirth create an undeniable physiological effect that prevents biological mothers from working during portions of pregnancy and during the post-partum period.

The court, in considering the matter, found that the right to maternity leave is not linked solely to the welfare and health of the child’s mother, but must out of necessity be interpreted to take into account the best interests of the child.

The court also had regard to the fact that the surrogacy agreement specifically provided for the surrogate parents to assume immediate responsibility for the child from the point of birth.

The court observed in passing that legislation such as the Basic Conditions of Employment Act would need to be amended to properly deal with such matters, as this legislation proceeds from the basis that only females are entitled to maternity leave.

In its judgment, the court found that the employer had unfairly discriminated against the employee by refusing to grant him paid maternity leave. It then went on to find that the employer, in applying its policies regarding maternity, must recognise the status of parties to a civil union and not discriminate against the rights of surrogate parents.

The court further ordered the employer to pay the balance of the two months’ maternity leave that had not been paid to the employee.

This judgment paves the way for employees in same-sex unions to request maternity leave where they have become parents through a surrogacy arrangement. This would, by implication, arguably also include an adoptive parent of a recently conceived child or a male parent whose partner dies during childbirth.

The Basic Conditions of Employment Act provides as a right that those entitled to maternity leave must be given four months’ maternity leave, but does not require an employer to pay maternity leave. Most employers do pay an employee part or all of that employee’s salary while on maternity leave. With this judgment, employees in a similar position to the applicant in this matter would be entitled to contend for that paid maternity benefit where the employer has permitted its female employees an entitlement to such leave.

The judgment may also impact on the position of employees who are not paid by employers and who claim maternity leave benefits through the Unemployment Insurance Fund. It would seem that the Unemployment Insurance Fund would have to fund unemployment insurance benefits lodged by surrogate, adoptive or male parents who have to assume the role of primary care giver.