Scenario: An employee who is in the early stages of her pregnancy, is employed by the company without the company being aware that the employee is in fact pregnant. The company may feel that the employee has deceived and misled the company by failing to disclose her pregnancy, which places a strain on the employment relationship.
Is the company then entitled to take disciplinary action against the employee for failing to disclose the pregnancy? The only way this can happen is if there is a duty on the employee to disclose her pregnancy to the employer.
Section 25 of the Basic Conditions of employment Act 71 of 1997 [BCEA]:
5) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to –
a) commence maternity leave; and
b) return to work after maternity leave.
6) Notification in terms of subsection (5) must be given –
a) at least four weeks before the employee intends to take maternity leave; or
b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.
Section 187(1)(e) of the Labour Relations Act 66 of 1995 [LRA] stipulates that a dismissal is automatically unfair if the reason for the dismissal is the employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy.
There is no statutory obligation on the employee to disclose her pregnancy other than as stipulated in section 25(6) of the BCEA.
The employer has no right to ask whether the employee is pregnant and the employee is under no obligation to answer the question. The employer may however ask the question if it is an inherent requirement of the job that the employee not be pregnant.
Employees are therefore advised to rather be honest during the interview process when asked the question; otherwise there is a possibility that the employee could face dismissal for misconduct as a result of the dishonesty. The dismissal could be viewed as a fair dismissal provided that the reason for the dismissal has nothing to do with the pregnancy.
For a classic automatically unfair dismissal on the ground of pregnancy, one can refer to the case of Ekhamanzi Springs (Pty) Ltd v Memela (2014) 35 ILJ 2388 (LAC).
In a nutshell, there is no obligation on an employee to disclose her pregnancy to the employer, other than the four weeks’ notice prior to going on maternity leave, as per the BCEA. If a company therefore dismisses an employee for reason of her pregnancy, this will constitute an automatically unfair dismissal and be viewed as unfair discrimination.
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