On 3 October 2025, the Constitutional Court handed down a landmark judgment that reshaped Parental Leave in South Africa. The Court confirmed that the leave provisions in the Basic Conditions of Employment Act and the Unemployment Insurance Act were unconstitutional because they were based on outdated assumptions that only the birthing parent is the primary caregiver.

The outcome is that all parents now have equal Parental Leave rights, regardless of gender, biology or family structure. These changes apply immediately, and Employers must adjust their policies and practices without delay.

Why the law changed

Under the previous legal framework, Parental Leave entitlements were linked to the act of giving birth rather than the role of caregiving. This resulted in unequal treatment of fathers, same sex parents, adoptive parents, commissioning parents and blended families. It also deprived parents of the right to decide how they would structure caregiving within their own households.

The Court held that Parental Leave must protect equality, dignity and the best interests of the child; and that caregiving is a choice that should not be determined by biology.

What has changed

1. Equal Parental Leave for all parents

The BCEA must now be interpreted as providing a total Parental Leave entitlement of four months and ten days where both parents are employed. This period may be shared between the parents in any agreed allocation, provided that the birthing parent takes at least 6 weeks of Parental Leave after the birth, which forms part of the shared entitlement. The remaining period may then be allocated between the parents, and they may take leave consecutively, simultaneously, or in a combination of the aforementioned.

Where only one parent is employed, the employed parent is entitled to four months of Parental Leave.

Both parents are recognised equally as caregivers when they assume caregiving responsibilities, and they may decide how the leave will be allocated within the applicable entitlement.

2. Adoption provisions expanded

The age restriction that previously limited adoption leave to children two years and below has been declared unconstitutional. Adoption leave applies regardless of the child’s age while Parliament works on amendments.

3. UIF benefits remain unchanged for now

While the new Parental Leave entitlements have been applicable since 3 October 2025, UIF benefits have not been updated as UIF has been afforded up to thirty-six months to amend the current Parental Leave UIF benefits.  The payment of Parental Leave UIF benefits will thus still be subject to the provisions of the Unemployment Insurance Act (2001) until further notice.

Key Risks for Employers

Employers who do not implement the new Parental Leave framework face several risks, including:

• Unfair discrimination claims,
• Unfair labour practice disputes,
• Exposure under the Employment Equity Act where benefits differ based on gender or family structure, and
• Increased audit or compliance risk.

Relying on outdated policy wording or historic practices places Employers at significant risk.

Actions Employers must take now

1. Review partially paid Parental Leave benefits

Where Employers provide partially paid Parental Leave benefits, this practice must be carefully reviewed, as the shift to equal Parental Leave has a direct impact on the Employer’s payroll budgeting and may increase total spending on the enhanced Parental Leave benefits. The reason is that any current maternity benefits funded by the Employer must now be accessible to whichever parent takes the Parental Leave. Restricting an enhanced benefit to the birthing parent carries a high risk of unfair discrimination, since benefits must now follow the caregiving allocation rather than biology or gender.

Employers, therefore, need to evaluate if their existing Parental Leave benefit structures are fair under the new legal framework.

One option is to redesign the current maternity benefit into a gender-neutral Parental Leave benefit that applies equally to all eligible parents, regardless of family structure. Another option is to ring-fence the existing benefit for current Employees while introducing a revised, equitable benefit for future hires. Employers may also choose to convert their current benefit into a reduced or tapered payment model that still provides support but in a more cost-manageable manner, provided this is implemented through proper consultation with existing Employees.

Amending or completely removing paid/partially paid parental leave benefits is possible but requires sound business rationale and proper consultation, especially where the benefit has been enjoyed by Employees over time and is a term and condition of employment.

Removing or amending benefits without consultation, in other words, through unilateral changes, carries a very high risk of unfair labour practice disputes and is entirely inadvisable.

Whatever approach is adopted, the essential requirement is that any paid or partially paid leave benefit must comply with equality principles and must not favour one parent over another based on gender or biological role.

2. Update HR Policies, Employment contracts and Leave forms

Employers should replace all references to maternity, paternity, adoption and commissioning leave with a single Parental Leave category. Leave Policies must explain leave sharing, notice requirements, documentation and approval procedures. Employment Contracts and Leave forms should be updated to reflect the new entitlements.

3. Train managers and HR teams

Managers must understand the new Parental Leave entitlements and avoid assumptions about which parent should take leave. Incorrect guidance can amount to discrimination. Training should also cover documentation requirements and how to manage sensitive scenarios such as surrogacy or miscarriage.

4. Update payroll, HR systems and UIF processes

Employers must add the new Parental Leave category to HR and payroll systems. Parental Leave must be granted in accordance with the Constitutional Court judgement, even though UIF benefits remain unchanged for now. Clear communication is essential to avoid confusion.

5. Communicate interim guidance to Employees

Employees should be informed that the new rights apply immediately and that the Company’s Leave policy will be updated. Organisations should provide a contact person for Parental Leave queries and reassure Employees that all their rights will be honoured.

What this means for organisations

The judgment requires Companies to rethink how they approach caregiving, inclusion and workplace flexibility. Employers who respond proactively will reduce legal risk, thereby reflecting their support for employee well-being and for diverse family structures, whilst demonstrating a commitment to equitable practice.

This is an opportunity to modernise workplace culture and support parents in a more meaningful way.

Need assistance? 

FvT HR Consulting can provide support for all aspects of the new Parental Leave framework, including Leave policy updates, Employment contract revisions, manager training, benefit structure reviews, and Employee communication regarding the leave changes.

Written by Suzaan de Stadler (HR/Labour Consultant)