I have been shortlisted for a new job and have an interview next week. Do I have to tell the panel I am three months pregnant?

The long answer

No, you are not legally or ethically required to tell the panel that you are pregnant. Employers are not allowed to discriminate against job candidates based on pregnancy.

There are four laws that protect pregnant women from discrimination:

1. The overarching law is the Constitution: Section 9(3) of the Constitution lists pregnancy as one of the many grounds of non-discrimination. This essentially means that no employee can be directly or indirectly discriminated against based on her pregnancy status.

2. The second law protecting pregnant women is the Employment Equity Act of 1998. In this Act, discrimination is explicitly forbidden on grounds including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, and birth.

3. The third law protecting pregnant women against discrimination is the Labour Relations Act (LRA). The Small Enterprise Employers of South Africa (SEESA) says that in terms of Section 187(1) of the Labour Relations Act, the dismissal of an employee because of the employee’s pregnancy, intended pregnancy or any reason related to her pregnancy, will be deemed an automatic unfair dismissal. 

That means that no employee can be dismissed for being pregnant, nor can she face termination of service for planning or intending to be pregnant in future.

SEESA goes on to say that in addition, it will be viewed as an unfair labour practice to demote an employee, refuse a prospective candidate a position, or simply retract an offer of employment after the fact, on the grounds of an employee either being pregnant or intending to become pregnant in the future. So if an employer decides to refuse or take back an offer of employment, for any reason to do with the job applicant’s pregnancy, the job applicant will have solid grounds to refer the matter to the CCMA on the grounds of unfair discrimination.

4. The fourth law protecting pregnant women is the Basic Conditions of Employment Act (BCEA). Labourguide.co.za says that the BCEA only lays down that a pregnant woman must inform the employer that she needs to apply for maternity leave at least one month before she needs to go on maternity leave. There is no legal requirement to disclose pregnancy at any other time. A pregnant woman can legally start her maternity leave any time from four weeks before her expected due date (or earlier if medically necessary). So in terms of the BCEA, you are not legally obliged to tell a prospective employer that you are pregnant.

There was a case where a pregnant worker was dismissed because the employer said that the trust relationship had broken down as the worker didn’t disclose her pregnancy. The court didn’t agree and found that the true reason for the dismissal was the pregnancy, not the trust relationship breaking down. So the dismissal was ruled to be automatically unfair. 

SME Labour Support explains that an automatically unfair dismissal is often related to the infringement of a fundamental right (like the right of pregnant women not to be discriminated against). If the reason for the dismissal relates to an infringement of that fundamental right, it is an automatically unfair dismissal.

SME Labour Support says that if a dispute relating to an automatically unfair dismissal is not resolved after conciliation by the CCMA or bargaining council, the dismissed employee may refer the dispute to the Labour Court for adjudication. If the dismissal is found to be unfair, the Labour Court may award the employee compensation of up to 24 months’ salary. The CCMA does not have the power to arbitrate disputes involving alleged automatically unfair dismissals unless the employee and employer agree, in writing, to arbitration by the CCMA.

In another case described by Labour Guide, a fixed-term contract employee was invited to apply for a vacancy for a permanent post that had arisen in the workplace. Before the post was actually advertised, the employee informed her supervisor that she was pregnant. She did apply for the permanent post, but her application was unsuccessful. The court ruled that this decision was automatically unfair because it was made for a reason related to pregnancy.

Labour Guide warned that employers should be very careful when dismissing pregnant employees, because even if they were dismissed for other reasons, it would be difficult to prove that the dismissal did not have anything to do with the employee’s pregnancy. They said that usually in dismissals related to pregnancy, a maximum of 24 months’ salary and/or reinstatement is awarded to the dismissed worker by the Labour Court.

So it’s clear that you do not have to tell the interview panel that you are three months pregnant.

Wishing you all the best,

Athalie 

Wishing you the best,
Athalie