Thursday 26 October 2023
The High Court has delivered a ground-breaking judgment declaring provisions of the Basic Conditions of Employment Act unconstitutional.
It found that the provisions discriminate unfairly between mothers and fathers, and between birth-mothers and mothers through surrogacy and adoption, in relation to the amount of parental leave afforded to them.
The declaration of invalidity was suspended for 2 years to allow parliament an opportunity to remedy the provisions. The court also made orders regarding amended provisions that will operate in the interim.
These include a provision allowing both parents in a natural birth arrangement to elect which parent would take the whole four-month parental leave period, or to freely allocate that four-month period between them.
Parents adopting a child younger than two years and parents in a commissioning parent arrangement are entitled to the same leave regime as that applicable to parents to a natural birth.