VAN WYK ONE YEAR ON: SHARED PARENTAL LEAVE, BUT WHO VERIFIES THE SHARING?

Nearly a year after the Constitutional Court’s decision in Van Wyk, employers are still grappling with a practical problem, how do they verify shared parental leave when the parents work for different employers?

The judgment created a shared parental leave entitlement of four months and ten days for employed parents in a parental relationship, but it did not create a mechanism for employers to verify how that leave is divided. As a result, employers are required to administer a collective entitlement while relying largely on information provided by employees.

For employers, the real issue is not whether parental leave may be shared. It is how to manage the entitlement lawfully, consistently and in compliance with POPIA.

Proposed amendments to the BCEA, published in 2026, will require parents to enter into a written agreement setting out how leave will be apportioned and to submit that agreement to their respective employers. This is a positive step because it creates a common record for both employers.

However, the proposed amendments do not solve the verification problem. They do not explain how employers can confirm that leave taken matches the agreement, how conflicting information should be resolved, or what happens if circumstances change.

In our view, lawmakers should focus on closing the verification gap. A practical framework should require notification of amendments, permit limited information-sharing amongst respective employers, prescribe how conflicts are resolved, and regulate consequences for misrepresentation. 

What then should employers do now?

1. Update parental leave policies to reflect the Van Wyk framework.

   
   

2. Require employees to submit a written parental leave apportionment agreement.

   
   

3. Include employee consent for limited verification between employers of parents in a parental relationship. 

   
   

4. Ensure any verification process complies with POPIA and is limited to information strictly required to administer leave.

   
   

5. Provide for consequence management where allocations are intentionally misrepresented.

The key takeaway is simple, shared parental leave can only operate effectively if employers have a lawful and workable way to verify how the entitlement is being shared. Until legislation addresses that gap, employers should strengthen their policies and procedures to reduce risk.