Employment and Labour Law

 

 


Yes, the Minister of Employment and Labour sets sector-specific numerical targets for designated groups to achieve equitable representation in various occupational levels. While designated employers must include numerical goals in their Employment Equity Plans and report on progress, the Act focuses heavily on the process of compliance.

Failure to implement the required processes (e.g., conducting an analysis, preparing a plan, consulting with employees, and submitting reports) can lead to significant fines. However, the Act acknowledges that there may be reasonable grounds for failing to meet numerical targets, and non-achievement of targets alone does not automatically trigger fines, provided the employer can justify the reasons and demonstrate adherence to the prescribed processes.

Yes, the EEA acknowledges that it is not unfair discrimination if a preference or exclusion is based on the "inherent requirements of a job." This means that if a particular characteristic is absolutely essential for performing the core duties of a specific role, discrimination based on that characteristic might be permissible. However, this must be genuinely inherent and not merely a preference.

No, foreign nationals are not considered members of designated groups for the purpose of the Employment Equity Act. While their employment may be reflected in company reports, they cannot be used to meet numerical goals for affirmative action.

Yes, absolutely. All Organs of State, statutory bodies, and other constitutional entities are considered "designated employers" and must submit their Employment Equity reports annually on the first working day of October.

If a temporary worker has been employed by your company for three continuous months or more, they must be included in your Employment Equity reports to the Department of Labour, regardless of whether they were sourced through an agency.
Furthermore, if the temporary employment service itself meets the definition of a "designated employer" (e.g., employing 50 or more workers or exceeding the annual turnover threshold), they are also required to submit their own Employment Equity reports.

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Employment Equity

Empowering Your Workplace - Understanding Employment Equity in South Africa

At VDM Attorneys, we believe in fostering fair, inclusive, and productive workplaces. In South Africa, the Employment Equity Act (EEA) is a cornerstone of this vision, designed to dismantle historical barriers and build a more equitable future for all.

This page provides a clear and concise overview of the EEA, explaining how it benefits both employees and employers, prevents unfair discrimination, and promotes a truly representative workforce. Whether you're a worker seeking fair treatment or a manager striving for a more competitive and inclusive team, understanding the EEA is crucial.

Let us guide you through the essentials of this vital legislation, ensuring your workplace operates with integrity and equal opportunity at its core.

In essence, Employment Equity in South Africa seeks to create a more diverse and inclusive workforce where everyone has an equal chance to succeed, and no one faces unfair discrimination. It's a legal mandate for certain employers to actively work towards achieving equitable representation across all occupational levels and categories.

How the EEA Helps Workers and Managers

For Workers: The EEA helps remove discriminatory barriers, ensuring access to training, new opportunities, and promotions. It means fair treatment in all aspects of employment.

For Managers: A more equitable workplace leads to a more productive and motivated workforce, which in turn makes your company more competitive in South Africa and globally.

Who is Affected by the EEA?

Almost all employers and workers in South Africa are covered by the EEA, with the exception of those working for the National Intelligence Agency, the South African National Defence Force, and the South African Secret Service.

Preventing Discrimination at Work

The EEA prohibits discrimination at work or when applying for a job based on various grounds, including:

  • Race
  • Gender
  • Sexual Orientation
  • Pregnancy
  • Marital Status
  • Family Responsibility
  • Ethnic or Social Origin
  • Colour
  • Age
  • Disability
  • Religious Belief
  • Political Opinion
  • Language
  • HIV Status

This means all employment policies and practices—like recruitment, advertising, selection, training, promotion, and disciplinary measures—must be non-discriminatory.

Examples of Unfair Discrimination the Law Prevents:

  • Paying different wages to Black and White workers doing the same job.
  • Denying women the same medical aid or pay as men for the same job.
  • Refusing a job interview to a person with a disability because of their disability.
  • Refusing a job or training to someone who is HIV positive because of their HIV status.
  • Barring a competent woman from a job traditionally done by a man, or vice-versa.
  • Advertising for someone within a specific age range (e.g., "applicants must be 25-35") or insisting on age or marital status in applications.

Fair Discrimination (Affirmative Action)

The Act allows for "fair discrimination" as part of an affirmative action program or when it's an inherent requirement of the job. An example is a training program specifically designed to advance Black women in the workplace.

Protecting People with HIV

Voluntary counselling and testing (VCT) is a legal requirement. Employers cannot test for HIV unless they get permission from the Labour Court.

Medical and Psychometric Tests

These tests can only be conducted under specific conditions and must not be biased. Medical tests should only occur after a job offer and after confirming the person can perform the job's essential functions.

Sexual Harassment

Harassment is a form of unfair discrimination and is illegal. Examples include:

  • Persistent and unwelcome flirting.
  • Sexual phone calls, notes, or emails.
  • Implied or overt threats that job promotion or wage increases depend on sexual favours.

What to Do if You Face Unfair Discrimination

Declare a "dispute" with your employer, ideally following your company's internal grievance procedure.

  • If the internal process doesn't resolve it, contact the Commission for Conciliation, Mediation and Arbitration (CCMA).
  • The CCMA will attempt conciliation. If that fails, and both parties agree, the matter can go to arbitration at the CCMA.
  • If arbitration isn't agreed upon, you can take the matter to the Labour Court for a judge to hear your case.

Affirmative Action

Beyond preventing discrimination, the EEA promotes affirmative action. Larger employers are legally required to improve the representation of Black people, women, and people with disabilities in the workplace, especially in higher positions.

Developing an Employment Equity Plan

"Designated employers" (generally those with 50 or more workers, or smaller employers meeting specific turnover thresholds, along with municipalities and organs of state) are responsible for developing an Employment Equity Plan. This is done in consultation with their workers.

Key duties for designated employers include:

  • Assigning a senior manager to promote affirmative action.
  • Consulting all workers on steps to improve the position of designated groups.
  • Identifying problems preventing designated groups from getting jobs or advancing.
  • Preparing a plan to solve these problems and ensure the company reflects South Africa's diverse population.
  • Reporting to the Department of Labour on their company's representativeness and improvement efforts.

Reporting on Employment Equity

Designated employers must submit reports to the Department of Labour annually or every two years, depending on their size. This report details their progress in implementing their Employment Equity Plan.

Employing People with Disabilities

The EEA and a specific Code of Good Practice aim to ensure equal opportunities and fair treatment for people with disabilities.

Definition of "People with Disabilities": Individuals with a physical or mental impairment that is long-term or recurring, and substantially limits their prospects of entering or advancing in employment.

Key principles include:

  • Reasonable Accommodation Employers should make cost-effective adjustments to remove barriers for suitably qualified applicants and staff with disabilities.
  • Recruitment and Selection Job advertisements should be accessible, clearly stating inherent job requirements, skills, and reasonable selection criteria.
  • Medical and Psychological Testing Tests must be relevant, appropriate, scientifically valid, reliable, and fair, without unfairly excluding conditions.
  • Training and Career Advancement Facilities and materials should be accessible, and performance evaluations fair.
  • Retaining People with Disabilities Efforts should be made to reintegrate workers who become disabled, including exploring alternative work arrangements.
  • Confidentiality Information about a worker's disability must be kept confidential and separate from general personnel records.
  • Benefits Occupational insurance and benefit plans must not unfairly discriminate against people with disabilities.

Do you have any specific questions about how the Employment Equity Act might apply to your situation or business? Contact VDM Attorneys for consultation. 

Your Partner in Employment Equity

Navigating the complexities of the Employment Equity Act is essential for every South African workplace. By embracing the principles of fairness, inclusion, and affirmative action, businesses can not only comply with the law but also cultivate a dynamic and thriving environment for all.

At VDM Attorneys, we are committed to helping both employees and employers understand their rights and obligations under the EEA. Whether you require assistance with compliance, dispute resolution, or developing robust employment equity plans, our experienced team is here to provide expert guidance and support.

Contact VDM Attorneys today to ensure your workplace fully embodies the spirit of equality and unlocks its full potential.