Articles

Law protects pregnant workers’ health

Business Law & Tax Review September 2009
By Lavery Modise & Sicelo Mngomezulu

Basic standards for the safety and health of pregnant employees are set out in section 26 of the Basic Conditions of Employment Act of 1997 sets.

In terms of section 87(1)(b) of the Basic Conditions of Employment Act the Labour Minister has issued a code of good practice on the protection of employees during pregnancy and after childbirth. This code provides guidelines on the practical application of section 26. It also sets out the legal requirements relevant to the protection of the health and safety of pregnant and breast-feeding employees. However, the code acknowledges that its provisions are general and allowance is made for deviation from its provisions in appropriate circumstances.

Minimum standards are, however, set out in section 26 of the Basic Conditions of Employment Act. In terms of the minimum standards, no employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to the health of her child.

During an employee's pregnancy and for a period of six months after the birth of her child, if the employee is required to perform night work or her work poses a danger to her health or safety or that of her child her employer must offer her suitable alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if it is practical for the employer to do so.

In Sheridan v The Original Mary-Ann's at the Colony (Pty) Ltd, the employee had been summarily dismissed by the employer when she was three months pregnant. This was after the employee had objected to the reduction of her shifts as a consequence of which she was then replaced by someone else. The court found in this matter that the employer's conduct had been insensitive and despicable and should be condemned. It found further that the employer had demonstrated no compassion at a critical time in the employee's life. Aggravating the employer's conduct was the fact that the employer also failed to give the employee her unemployment card to enable her to claim her maternity benefits. The employer was ordered to compensate the employee for the equivalent of 24 months’ remuneration.

The code also proposes methods for assessing and controlling the risks to the health and safety of pregnant and breast-feeding employees. Also listed in the code are physical, ergonomic, chemical and biological hazards to the health and safety of pregnant and breast-feeding employees and also recommended steps on how to remedy or control such hazards. Item 5.6 of the Code of Good Practice on the Regulation of Working Time recommends that shift arrangements should accommodate the needs of pregnant and breast-feeding workers.

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