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Employment Equity, The Legislation and Beyond

Employment Equity, The Legislation and Beyond

Moore Cape Town’s HR Team

Employment Equity, the legislation and beyond.
Employment Equity in South Africa is regulated by the Employment Equity Act (no. 55 of 1998) (EEA) and governed by the Department of Labour. The purpose of the EEA is to achieve equity in the work place by means of;
  • eliminating unfair discrimination in the workplace, and
  • achieving equitable representation of employees from designated groups by means of affirmative action measures.
But, what does it mean to eliminate unfair discrimination in employment practices?
Simply put, an employer may not discriminate against employees directly or indirectly through their policies (i.e. recruitment procedures, remuneration policies, promotional opportunities) or their employment practices on the grounds of race, gender, religion, marital status, disability, language, age, and so on. A full list can be found in the EEA, clause 6.
Designated employers can and should however, fairly discriminate in order to achieve equitable representation of employees by implementing Affirmative Action measures consistent with the EEA and also by means of distinguishing, excluding or preferring any persons based on the inherent requirements of the job.
AA measures include: identifying and eliminating barriers in the workplace which adversely affect members of designated groups, making reasonable accommodation for members of the designated groups, measures which promote diversity, retention, development and training of members of the designated groups, and preferential treatment and numerical goals to ensure equitable representation.
The legislation:
Per legislation, all employers need to comply with Chapter 1 of the EEA which deals with the prohibition of unfair discrimination. Designated employers also need to comply with Chapter 2, which deals with affirmative action.

Designated employers are defined as follows: companies which have 50 or more employees or a turnover that exceeds the industry threshold as detailed below per schedule 4 of the EEA.
Agriculture R6 million
Mining and Quarrying R22.5 million
Manufacturing R30 million
Electricity, Gas & Water R30 million
Construction R15 million
Retail and Motor Trade and Repair Services R45 million
Wholesale Trade, Commercial Agents and Allied Services R75 million
Catering, Accommodation and other Trade R15 million
Transport, Storage and Communications R30 million
Finance and Business Services R30 million
Community, Special and Personal Services R15 million
Employment Equity Reporting deadlines: Designated employers who are planning on submitting their annual Employment Equity reports manually (by hand or post) need to do so by 1 October 2021. The deadline for online submissions via the Employment Equity Online Reporting System is 15 January 2022.

For assistance and information on EE related queries and the submission of the EE Report: Beyond the legislation:
Companies that focus on implementing equitable employment practices and affirmative action measures in the following ways; implementing fair policies, enforcing rules and policies consistently, communicating expectations of fairness, and so on, could reap the benefits of doing so. Some of the advantages of treating employees equitably or fairly (not necessarily equally), include attracting top talent, increasing employee retention/organisational commitment, having diverse teams, overall increased organisational effectiveness, job satisfaction and enhanced employee performance.    
Implementing Employment Equity within any company should not be confused with Broad-based Black Economic Empowerment (BBBEE). Companies must therefore know and understand the differences between Employment Equity and BBBEE. A table of some of the summarised key differences is presented below;
Employment Equity Broad-based Black Economic Empowerment
All employees need to comply with Chapter 1 of the Act and designated employers have to comply with both Chapter 1 and 2 of the EEA Employers don’t have to comply with BBBEEA, it is driven by preferential procurement
Beneficiaries: black people, women and people with disabilities Beneficiaries: only black people - not white women and white people with disabilities
Employment Equity plans are compiled with employees’ feedback and input No employee input
Focus on black employees on all occupational levels Focus is on black employees on higher occupational levels.
Focus on entire workforce profile Focus on ownership and management
One dimensional Multi-dimensional

Key Words:
  • Direct Discrimination: The less favourable treatment of an individual on grounds directly related to race, gender, age, etc. 
  • Indirect Discrimination: A subtle form of discrimination, which is difficult to define and identify.  It involves the application of criteria and/or requirements that are apparently neutral, but which have a significantly adverse impact upon a specific group.
  • Affirmative Action: A tool used to readdress the disadvantages many groups suffered under the apartheid government.
  • Designated Groups: Black people, women and people with disabilities who are South African citizens by birth or descent or became citizens by naturalisation before 27 April 1994. “Black people” include Africans, Coloureds, and Indians.