Pregnant and facing retrenchment: What are my rights?

To be pregnant and facing possible retrenchment is a nightmare, so when this reader reached out to us with a question regarding her current situation with her employer, we went straight to our legal experts for advice.


If you find yourself in a sticky situation,send us your questions, and we could publish an answer. Anonymous contributions are welcome.

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Financial turmoil

Hi Parent24,

I have been permanently employed with my current employer for almost 6 years and am currently 6 months pregnant. 

Today I was given notice of possible retrenchment/redundancy, due to the company being in financial turmoil.

My other two colleagues are being offered severance packages and to leave the company at the end of this month.  

According to the written letter, my options are that I can either accept a severance package OR stay employed, but have my contract terms renegotiated. 

My current contract states that I am entitled to 4 months PAID maternity leave... does my employer have the right to revoke that clause and choose to not pay me whilst on maternity leave, especially now that I'm pregnant?

And if I should accept the severance package, is my employer liable to pay me out for the 4 months maternity leave she would have owed me? 

Your urgent assistance and guidance would be greatly appreciated.

Thanks you,

Anonymous Mom-To-Be

Expert Advice

Carl Botman, a lawyer at LAW FOR ALL, first responds with kindness, saying "Pregnancy can be immensely stressful, so the last things you want to be dealing with are issues in the workplace and impending retrenchment."  

"We would therefore from the onset wish to advise you to take it easy as much as you can - easier said than done under these circumstance, of course," he adds.  

For some legal insight, let’s start with severance packages.

They are calculated as follows, Botman explains: A week’s pay for each completed year that you have been in the permanent employ of the company. 

Not compulsory

"If your maternity benefit is part of your existing employment contract then it is important to note that the Basic Condition of Employment Act does not make it compulsory for the employer to have this benefit," he says. 

If the employee does not get it in terms of their employment benefits then they need to approach the Department of Labour for the maternity benefit.

However, if your contract makes provision for employees to have a maternity benefit, and your employer fails to adhere to it, they could be in breach of one of the conditions of employment.

The lesser of two evils

In terms of renegotiating contract terms, it’s advisable to remain open-minded, as it could be the lesser of two evils - like retrenchment. 

Of course, Botman says, if the employer has retracted the maternity benefit in its entirety, it will leave you in a precarious position.

So, you can either consider negotiating with your employer to include the maternity benefits to form part of the severance package or consider a restructured contract going forward. 

Note: The latter will not necessarily have to affect existing maternity benefit, since this was already contractually agreed upon and would be a contractual breach if automatically retracted. 

Also read: How our family survived retrenchment

Difficult not to adhere

Because you are in an advanced stage of your pregnancy, it will be difficult for the employer not to adhere to this condition of employment, unless you agree to another term in respect of this aspect.

Ultimately, if you don’t accept a severance package, your employer is still legally obligated to follow Section 189 of the Labour Relations Act, Botman says. 

If you do accept the package, it will most probably be in full and final settlement (peruse the settlement carefully), which would most possibly lead to the employer arguing they have fulfilled their part of the settlement even without the paid maternity leave, he says, unless of course it includes the paid maternity leave. 


If you find yourself in a sticky situation,send us your questions, and we could publish an answer. Anonymous contributions are welcome.

WhatsApp: Send messages and voicenotes to 066 010 0325

Email: chatback @ parent24.com

Read more:

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Yes! New paternity leave benefits begin now