From parental leave equality to incapacity management and arbitration award standings, 2025 delivered a new pivotal Constitutional Court judgment and reaffirmed legal positions. Here’s a concise, action-oriented review for HR leaders.
The Constitutional Court confirmed that the BCEA/UIF scheme unfairly discriminated between categories of parents. The Court suspended the declaration for 36 months to allow Parliament to legislate, but provided an interim reading-in to the BCEA that all employers must now apply in their businesses. Where both parents are employed, they are entitled in the aggregate to four months and ten days’ parental leave, with rules on sharing and commencement; where only one parent is employed, that parent is entitled to the four consecutive months. The age cap limiting adoption leave to children under two was also declared unconstitutional.
What to do now
An executive chef suffered from mental-health issues after leading a response to a kitchen fire. Despite intermittent absence and in-patient care (with medical recommendations for staged return and accommodation), the employer proceeded to an incapacity hearing and dismissal. The Labour Court dismissed the employer’s review and upheld the CCMA’s award of six months’ compensation, stressing the heightened duty to accommodate where an employee’s incapacity is work-related and that reasonable alternatives weren’t exhausted.
What to do now
The LC reaffirmed that a precautionary suspension on full pay to allow investigation isn’t disciplinary in nature. There’s no legal requirement to invite representations prior to such suspension; fairness turns on a valid investigative reason and absence of material prejudice. The Court leaned on Long v SAB (2019) CC to underscore that principle.
What to do now
The LAC confirmed two tough lessons. First, reinstatement is not self-executing – employees must tender services; failure to do so can sink enforcement. Second, arbitration awards are “debts” and prescribe after three years; certification doesn’t convert them into 30-year judgments. The appeal failed on the tender point, rendering the prescription dispositive.
What to do now
Conclusion
Use December to get your house in order: update parental leave policies, tighten incapacity processes, calibrate suspension protocols, and standardise reinstatement communications. Your January 2026 HR audit will thank you.
From parental leave equality to incapacity management and arbitration award standings, 2025 delivered a new pivotal Constitutional Court judgment and reaffirmed legal positions. Here’s a concise, action-oriented review for HR leaders.
The Constitutional Court confirmed that the BCEA/UIF scheme unfairly discriminated between categories of parents. The Court suspended the declaration for 36 months to allow Parliament to legislate, but provided an interim reading-in to the BCEA that all employers must now apply in their businesses. Where both parents are employed, they are entitled in the aggregate to four months and ten days’ parental leave, with rules on sharing and commencement; where only one parent is employed, that parent is entitled to the four consecutive months. The age cap limiting adoption leave to children under two was also declared unconstitutional.
What to do now
An executive chef suffered from mental-health issues after leading a response to a kitchen fire. Despite intermittent absence and in-patient care (with medical recommendations for staged return and accommodation), the employer proceeded to an incapacity hearing and dismissal. The Labour Court dismissed the employer’s review and upheld the CCMA’s award of six months’ compensation, stressing the heightened duty to accommodate where an employee’s incapacity is work-related and that reasonable alternatives weren’t exhausted.
What to do now
The LC reaffirmed that a precautionary suspension on full pay to allow investigation isn’t disciplinary in nature. There’s no legal requirement to invite representations prior to such suspension; fairness turns on a valid investigative reason and absence of material prejudice. The Court leaned on Long v SAB (2019) CC to underscore that principle.
What to do now
The LAC confirmed two tough lessons. First, reinstatement is not self-executing – employees must tender services; failure to do so can sink enforcement. Second, arbitration awards are “debts” and prescribe after three years; certification doesn’t convert them into 30-year judgments. The appeal failed on the tender point, rendering the prescription dispositive.
What to do now
Conclusion
Use December to get your house in order: update parental leave policies, tighten incapacity processes, calibrate suspension protocols, and standardise reinstatement communications. Your January 2026 HR audit will thank you.
