Amendments to South Africa’s paid leave parental laws were widely celebrated last month (October 2025). In the eyes of the Constitutional Court, the Basic Conditions of Employment Act (BCEA) unfairly discriminated against men who did receive paid leave in the event of a newborn baby in the home.
As such, the court introduced new paid leave amendments with immediate effect. These stipulate that both parents share a combined four months and ten days of leave between them when a new child is born (or adopted). However, employment experts say, while well-meaning, there’s actually a big problem looming …
BIG PAID LEAVE ISSUES IN 2026
With the paid leave amendments barely a month old, Werksmans Attorneys says the shared-leave aspect of the ruling is likely to lead to conflict in 2026. Specifically, where the ruling says, “in the event of disagreement, that leave be split as evenly as possible between the two parents.”
However, as the firm rightly points out, the majority of parents are employed by different companies. And the amendments fail to address potential conflict resolution in paid leave policy disputes. As a result, BusinessTech reports that many employers may have no option but to remove paid maternity leave all together. Or face being pulled into time-consuming legal disputes with other companies.
AN EXAMPLE THAT WILL PLAY OUT OFTEN
Werksmans Attorneys delineated a scenario that’s likely to play out time and again over disputed paid leave in 2026:
- The mother’s employer policy currently grants four months’ fully paid maternity leave, which she rightfully claims.
- Meanwhile, the father requests his portion of the four months’ and ten says ‘shared leave’ under the Constitutional Court order.
- His employer does its due diligence and contacts the other company. It finds out the mother is taking a full four months in accordance with their policy.
- In turn, does this mean they can refuse the farther’s leave request? Or can that company demand the mother reduce her leave by two months, one month, etc … to justify an even split?
- And is any differentiation between the two objectively justifiable?
TRANSFORMATION OF PAID LEAVE IN 2026
The law firm notes that, in accordance with the BCEA, most existing paid maternity still applies only to female employees. And this will force many uncomfortable, time-consuming conversations under the new dispensation. However, even here, the Constitutional Court tries to make a distinction by saying: “The mother must have preference in respect of paid leave time allocated. As preparation for and recovery from childbirth.”
However, the economic reality of most employers in South Africa is that they cannot afford to pay unproductive staff for longer than is strictly necessary. As a result, the likely outcome of the well-meaning law may be the opposite. In attempting to accommodate fathers, it may inadvertently force mothers back to work in less time than before.
But what do you think? Should men get paid leave? And will unscrupulous employers try to take advantage of these new laws to reduce leave time? Be sure to let us know your thoughts in the comments section below …
