With the finance gap for women standing at $1.7 trillion, according to the World Bank, being born female means the cards are stacked against you. South African employment laws and benefits are, however, attempting to level the playing field.
Leila Moosa (pictured), senior associate in the employment law practice at Cliffe Dekker Hofmeyr, says South African employment laws and benefits value diversity and inclusion, specifically for women.
“For instance, our maternity leave policies and benefits compare relatively well against many other countries, with expectant mothers entitled to four months’ unpaid maternity leave,” she says.
As set out in the Basic Conditions of Employment Act, women-specific leave is limited to four consecutive months of maternity leave (non-binary persons and transgender persons may also be entitled to maternity leave). Maternity leave is unpaid “unless an employer provides a more favourable contractual or other benefit”. An eligible contributor may claim maternity benefits from the Unemployment Insurance Fund.
“That said, South African employers may offer enhanced contractual, or other discretionary leave benefits that may include menstrual leave and time off for new mothers to express during the workday,” she adds.
According to Moosa, the South African and international landscapes are changing in ways that promote the inclusion of women in the workplace. She explains that the concept of equity in South African law recognises that where barriers exist to allow persons to experience equality – for example, being treated the same in the workplace or otherwise – steps should be taken to ensure that those barriers are removed.
Historically, women have either been excluded from the workplace, or their presence, authority, and leadership has been limited within the workplace.
Moosa says although women’s participation in paid work is increasing and the discrepancies between the treatment of women and men in the workplace are to some extent decreasing, women continue, in some contexts, to experience barriers to retention and promotion.
“Therefore, for improved acquisition, retention, and advancement of women in the workplace, entitlements like maternity leave and menstrual leave recognise that women in the workplace may be away from work for these reasons, without experiencing any stigma or having any impact on career progression,” she says.
Menstrual leave
Menstrual leave, for example, has received significant media attention in recent months, with Spain the first country in Europe to recognise a form of menstrual leave. Closer to home, Zambia was the first African country to recognise a form of menstrual leave.
Menstrual leave is commonly understood to allow for an approved absence from work due to painful menstrual and/or menopausal symptoms.
Moosa states that different jurisdictions have recognised and implemented menstrual leave entitlements in different ways – some as a fixed entitlement, others as a distinct form of sick leave. The feasibility and implementation of such leave benefit, she explains, would largely depend on the purpose and parameters of the benefit.
“We see other jurisdictions providing leave benefits to accommodate painful menstruation, consequences of menopause or breastfeeding. But how such leave is granted – for example, on what basis and who pays – would be important for its feasibility if it were considered in South Africa. These questions are particularly important given South Africa’s socio-economic circumstances.”
However, Moosa adds there are no current indications that extended leave entitlements for women (or in the case of menstrual leave – persons who menstruate) are either imminent or that there are moves to introduce any distinct type of leave formally through the relevant legislative processes.
“It remains to be seen whether South African law will align with trends we are seeing internationally.”
Removing barriers to retention and advancement
Moosa says South Africa’s workplace employment equity legislation, the Employment Equity Act (EEA), provides for, among other things, prohibition against direct and indirect discrimination. The listed grounds for discrimination include discrimination based on sex and gender.
“Commonly referred to as the ‘equal pay provision’, the EEA provides that it is unfair discrimination for an employer to provide different terms and conditions of employment for employees performing the same or substantially the same work or work of equal value if such difference is based (directly or indirectly) on one or more of the grounds listed in the EEA (including sex and gender),” she says.
In terms of the EEA, women are recognised as a designated group. Moosa says employers are encouraged to promote open dialogue on the experiences of employees that may function as barriers to their acquisition, advancement, and retention of women in the workplace.
“This is inherent to and required by the affirmative action provisions of the EEA, which necessitate that designated employers implement measures that identify and eliminate employment barriers, including unfair discrimination, which adversely affect people from designated groups.”
