This guide will give you an overview of how to ensure that your business complies with the Employment Equity Act.
Complying with the Employment Equity Act
Only companies that employ 50 or more people are required to comply with the Employment Equity Act. However, your business’s turnover within your industry may place you in a category where you are also required to comply, so it’s best to comply voluntarily from the outset and avoid any future issues.
The Act applies to you if your turnover is more than that set down in Schedule 4 of the Act (the figures vary according to the type of industry):
The purpose of the Act is to achieve equity in the workplace, by
- Promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and
- Implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, so that they are equitably represented in all categories and levels in the workforce.
In terms of the Act, no one may unfairly discriminate against an employee on grounds of race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, and birth.
Note that it’s not unfair discrimination to promote affirmative action consistent with the Act or to prefer or exclude anyone on the basis of an inherent job requirement.
Medical testing of an employee is permissible only when legislation requires testing or when this is justifiable for various reasons. HIV testing is prohibited unless it’s determined to be justifiable by the Labour Court.
Psychological testing is not allowed unless the test is scientifically valid and reliable, can be applied fairly to all employees, and is not biased against any employee or group.
An employee or job applicant may refer a dispute concerning alleged unfair discrimination to the CCMA for conciliation. This must be done within six months of the alleged discrimination.
If a dispute is not resolved at conciliation, it may be referred to the Labour Court for adjudication. The parties to a dispute may also agree to refer the dispute to arbitration.
Unfair dismissal disputes in which unfair discrimination is alleged must be dealt with in terms of the Labour Relations Act. The dismissal must be referred to the CCMA within 30 days.
Duties of an employer
The employer must implement affirmative action measures for designated groups to achieve employment equity. To implement these measures, you have to:
- Consult with employees
- Conduct an analysis
- Prepare an employment equity plan
- Report to the Director-General on progress made in the implementation of the plan.
Affirmative Action measures
Affirmative Action measures are measures intended to ensure that suitably qualified employees from designated groups have equal employment opportunity and are equitably represented in all occupational categories and levels of the workforce.
These measures include:
- Identification and elimination of barriers with an adverse impact on designated groups
- Measures which promote diversity
- Making reasonable accommodation for people from designated groups
- Retention, development and training of designated groups (including skills development)
- Preferential treatment and numerical goals to ensure equitable representation. This excludes quotas.
Employers are not required to take any decision regarding an employment policy or practice that would prevent prospective or continued employment or advancement of people not from designated groups.
Follow these steps to develop and implement an employment equity plan:
As an employer, you must consult with representatives of employees representing the diverse interests of the workforce. You must consult on the conducting of an analysis, preparation and implementation of a plan, and on reporting to the Director-General.
2. Disclosure of Information
To ensure meaningful consultation, you must disclose relevant information to the consulting parties.
Conduct an analysis of your employment policies, practices, procedures, and working environment. This will enable you to identify employment barriers that adversely affect members of designated groups. The analysis must also include the development of a workforce profile to determine to what extent these groups are under-represented in the workplace.
4. Employment equity plan
Next, prepare and implement a plan to achieve employment equity. This must include the following:
- Objectives for each year of the plan
- affirmative action measures
- Numerical goals for achieving equitable representation
- A timetable for each year
- Internal monitoring and evaluation procedures, including internal dispute resolution mechanisms
- People, including senior managers, to monitor and implement the plan
If youemploy fewer than 150 employees, you must submit the first report to the Director-General within 12 months, and thereafter every two years on the first working day of October.
If you employ 150 or more employees, you must submit the first report within six months, and thereafter every year on the first working day of October.
6. Assigning a manager
You must assign one or more senior managers to ensure implementation and monitoring of the employment equity plan and make available the necessary resources.
7. Income differentials
A statement of remuneration and benefits received in each occupational category and level of the workforce must be submitted to the Employment Conditions Commission (ECC).
Monitoring, enforcement and legal proceedings
Employee or trade union representatives can monitor contraventions of the Act and report to relevant bodies.
Powers of the Labour Inspector
Labour Inspectors are authorised to conduct an inspection of the company. If the inspector has reasonable grounds to believe that you have failed to comply with your obligations, the inspector will obtain a written undertaking to comply within a specified period. If you refuse to comply with the written undertaking, the inspector will issue an order to comply.
Review by Director-General
The Director-General may conduct a review to determine whether you are complying with the Act. On completion of the review, the Director-General may make recommendations for compliance within certain time frames.
Powers of the Labour Court
The Labour Court has the power to make any appropriate orders, award compensation, or impose fines.
Protection of Employee Rights
The Act protects employees who exercise their rights and obligations against victimisation, obstruction and undue influence.
The Department of Labour: www.labour.gov.za
The South African Labour Guide: www.labourguide.co.za