In a groundbreaking decision delivered on 3 October 2025, the Constitutional Court in Van Wyk and Others v Minister of Employment and Labour dismantled the long-standing framework governing parental leave. The Court held that several provisions of the Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Unemployment Insurance Act 63 of 2001 (UIA) were constitutionally invalid, as they unfairly discriminated on the grounds of gender, sex, and family status.

Parliament now has 36 months to correct the defects in both statutes. In the meantime, the Court has introduced an interim regime to ensure fair and equal access to parental leave while legislative amendments are pending. Notably, the Court declined to create a temporary UIF benefit structure, leaving that responsibility to Parliament.

At the heart of the ruling lies a simple but powerful principle: all parents deserve equal leave entitlements, regardless of whether they become parents through childbirth, adoption, or surrogacy, and irrespective of their sex or gender identity. The judgment marks a decisive move towards substantive equality in both the family and the workplace.

The Interim Parental Leave Framework

The Constitutional Court’s order replaces the BCEA’s traditional “maternity leave” model with a gender-neutral parental leave system, structured as follows:

• The term “maternity leave” is abolished and replaced with “parental leave” applicable to all parents.
• A single parent, or the only employed caregiver in a parental unit, is entitled to four consecutive months of parental leave.
• Where both parents are employed, they may share a total of four months and ten days of leave, to be divided at their discretion.
• Parents can choose whether to take their leave together, one after another, or a combination of both.
• If the parents cannot agree on how to divide the time, it must be split as evenly as possible.
• Birth mothers are given priority for the period immediately before and after giving birth, in recognition of physical recovery needs.
• These rules apply equally to parents who become caregivers through surrogacy or adoption.

The Court further criticised the age restriction on adopted children (previously limited to those under two years old), declaring it irrational and unconstitutional. However, it left the task of setting a new age limit to Parliament during the legislative reform process.

Adjusting Workplace Practices

Employers are urged to immediately review employment contracts, leave policies, and HR manuals to ensure alignment with the new parental leave framework. The following considerations are key:

1. Language update: Replace separate references to “maternity,” “adoption,” or “commissioning parental leave” with the inclusive term “parental leave.”
2. Verification measures: Introduce practical systems for employees to declare the leave arrangements of their partners or co-parents (e.g., affidavits or employer letters).
3. Pregnancy-related provisions: Ensure that birth mothers may take leave before and after childbirth, and that employees who experience stillbirth or late miscarriage are afforded parental leave.
4. Alternative parenthood: Develop procedures for employees entering adoption or surrogacy arrangements to prove legal parenthood in terms of the Children’s Act 38 of 2005.
5. Collective agreements: Where leave entitlements are regulated through trade unions or bargaining councils, employers must negotiate revised terms consistent with the Court’s ruling. Pending such amendments, no parent may receive less favourable treatment than that required by the new interim regime.

Broader Significance

This judgment represents far more than an administrative overhaul, it is a transformative reaffirmation of equality and dignity in the workplace. By recognising diverse forms of parenthood, the Court has dismantled gendered stereotypes about caregiving and advanced a model of shared parental responsibility.

Employers now have an opportunity to foster truly inclusive workplaces, ones that support all parents equally, irrespective of sex, gender, or the path through which they form their families. The ruling invites both employers and employees to reimagine the balance between work and family life in a manner that reflects South Africa’s constitutional values of fairness, respect, and equality.