Werner and Ika Van Wyk’s application against the Minister of Employment and Labour advances a gender-neutral reading of the term “employee” in the provision of the Basic Conditions of Employment Act 75 of 1997 (BCEA) relating to maternity leave so as to apply to parents irrespective of whether they have given birth. This reading would extend the right to four months maternity leave beyond an employee who gives birth to a child.

If this argument is unsuccessful, the Van Wyks are asking in the alternative for a declaration that the maternity leave provisions of the BCEA are unconstitutional and invalid to the extent that they exclude parents who have not given birth to the child. Judgment in the matter has yet to be handed down. Given the constitutional nature of the challenge, the judgment may require confirmation by the Constitutional Court.

While the case elicits diverse views as to its merits, its constitutional significance and importance within the workplace in South Africa cannot be overlooked. Depending on the relief granted, if any, it may result in a much wider pool of employees who are entitled to take four months maternity leave to care of their newborn child. This may have an operational impact on employers from a planning and capacity perspective as well as cost implications, particularly if the employer pays its employees while they are on maternity leave.