Employees are often faced with a difficult situation in the workplace when falling pregnant. Many establishments react unfavourably towards female employees that fall pregnant. These employees are often discriminated against in various direct and indirect manners. There are, however, clear provisions that protect employees in these situations which employees should familiarise themselves with.
There are different ways in which employees can be discriminated against in the workplace due to the fact that the employee has fallen pregnant. These forms of discrimination have different degrees of disadvantage towards the employee. It can range from having her contract terminated, being treated badly, being verbally abused or being ridiculed because she has fallen pregnant.
As a point of departure, it is stated in Section 9(3) of the Constitution of the Republic of South Africa, that nobody may be discriminated against based on the fact that they are pregnant. It is therefore a constitutional right for an employee not to be discriminated against in any form or manner because of her pregnancy. This right is further confirmed by Paragraph 4.2 of the Code of Good Practice on the Protection of Employees during Pregnancy.
The most severe form of discrimination against an employee is the dismissal of an employee due to the fact that she has fallen pregnant. The Labour Relations Act  specifically mentions that an employer is not entitled to dismiss an employee due to her pregnancy. However, there are various other ways of discriminating against a pregnant employee that should be noted.
Employees should be mindful of more subtle forms of discrimination, such as contracts not being renewed when it was earlier apparent that it would have been, or where a promotion is not granted to an employee purely because she has fallen pregnant at a certain time. Whenever an employee can prove that there was a direct link between any disadvantage and her pregnancy, she will most likely be entitled to the appropriate remedy. Employees are further entitled to a certain amount of unpaid maternity leave and will be entitled to insist on it.
In the event of an employee being dismissed due to her pregnancy, or where it is clear that an employee was discriminated against in any way for this reason, there are various remedies for the employee to choose from. It is always a good idea to resolve the issue without taking legal action, as this will be an expensive exercise and will most likely cause a relatively uncomfortable atmosphere between an employee and an employer. An informal arrangement between the employer and employee is therefore recommended, yet it is not always a practical solution. However, if no other option is available to the employee, she will always have the option to approach the CCMA as well as Labour Courts to prove that she was discriminated against due to her pregnancy. She will then be in a position to request the appropriate remedy.
In conclusion, female employees should be mindful of possible forms of discrimination against them as it is clearly prohibited. Direct and indirect forms of discrimination exist but aren’t always easy to identify. However, if identified and proven, such discrimination will not be allowed and must subsequently be corrected.
Constitution of the Republic of South Africa, 1996
Code of Good Practice on the Protection of Employees during Pregnancy
Labour Relations Act 66 of 1995
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)