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Does annual leave accrue during maternity leave?

The Basic Conditions of Employment Act (BCEA) talks about a leave cycle of 12 months during which 21 consecutive days annual leave are accrued (15 working days for a 5 day working week, or 18 working days for a 6 day working week), without making any exception for maternity leave. Further, section 20(6) of the BCEA also prohibits maternity leave and annual leave from running concurrently.

Therefore, it is arguable that the BCEA, if it didn’t allow for accrual of annual leave during maternity leave, would fall foul of section 6 of the Employment Equity Act (EEA) as being unfairly discriminatory.

Furthermore, legislation does not allow an employee to be discriminated against on the grounds of pregnancy, intended pregnancy or reasons related to pregnancy and, therefore, employees can’t be prejudiced for taking maternity leave and non-accrual of annual leave during maternity leave will definitely prejudice the employee.

In light of the above, annual leave continues to accrue during paid or unpaid maternity leave as the person is still employed during the period.

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