Do I forfeit the accumulation of my annual leave during my four-month maternity leave?
By Devon Basson
This question is often asked and in most cases the person going on maternity leave is unsure whether her annual leave will accumulate while she is on maternity leave. There is no direct answer to this question. The interpretation of employers and employees differ in most cases when it comes to this question. To answer the question, one must look at several sections of the Basic Conditions of Employment Act. Section 20 of the Basic Conditions of Employment Act, which regulates annual leave, determines that a leave cycle stretches over a period of 12 months from the date the employee was employed. This section further determines that for every 12-month period, or leave cycle, the employer is entitled to 21 consecutive days leave. These 21 days come down to 15 working days that can be taken as annual leave in the 12-month period.
Section 21(1) and section 21(2) of the Basic Conditions of Employment Act, as explained above does not provide any exceptions to the rule, in other words, there is no specific exclusions in the Act, which stipulates that women do not enjoy the benefit of accumulated annual leave during their maternity leave. This means an employee’s annual leave will continue to accumulate, regardless of whether there was an interruption due to maternity leave. The fact that the employee is on maternity leave, which is unpaid leave in terms of the Act, does not in any way change her status as an employee.
The difference in opinion emerges with the interpretation of section 20(2)(b) of the Basic Conditions of Employment Act. This article determines that where there is an agreement between the employer and the employee, leave can build up against 1 day’s leave for every 17 day’s work or for which the employee was entitled to be paid. Employers interpret the section as, where the employee was on maternity leave, which is unpaid leave, and the employee is not working and not entitled to be paid, such an employee cannot accumulate annual leave during her maternity leave. It will only apply to cases where there is a written agreement between the employer and employee in which it is stipulated that leave will accumulate as set out in section 20(2)(b).
If an employer goes ahead and considers his interpretation of section 20(2)(b) as the correct one, it could amount to unfair discrimination based on pregnancy. The reason why this is addressed is because no one may be discriminated against based on pregnancy. Thus, to penalise the employee and to prevent her leave from accumulating, is nothing less than discrimination based on pregnancy, since the only reason she is disadvantaged is because she is pregnant and on maternity leave.