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Chapter 8 - Labour Law

Employment Equity Act No 55 of 1998

The Employment Equity Act (EEA) aims to create an environment of equality and non-discrimination in the workplace. It sets out grounds for non-discrimination and it says no employer can discriminate against an employee on any of these grounds. The grounds include:

• Race
• Gender
• Sex
• Pregnancy
• Marital status
• Ethnic origin
• Social origin
• Colour
• Sexual orientation
• Age
• Disability
• Religion
• Conscience
• Belief
• Culture
• Language
• Birth

It includes three other grounds for non-discrimination (compared to the Constitution and the Equality Act – on page)

• Family responsibility
• HIV status
• Political opinion

See SOUTH AFRICAN CONTITUTION & BILL OF RIGHTS: Section 9 The right to equality

If an employee believes that an employer is discriminating against him or her on any of these grounds in order to:

• demote or not promote the employee
• block the employee from having access to training and development
• make an unfair distribution of employee benefits to the employee

then the employee can refer the case to the Labour Court.

The EEA also sets out regulations on affirmative action in the workplace to create equal opportunities for all employees and for people applying for jobs. It says that employer who employs over 50 people or has a turnover of over a certain amount, must take steps to include previously disadvantaged groups (black people, women and the disabled) in their workforce. So, when a company makes new appointments or promotes staff, it must give ‘preferential treatment’ to properly qualified people who are from one of these previously disadvantaged groups. In other words, formal qualifications or relevant experience are not the only reasons for deciding whether a person is suitable for a job or not. (The definition of a ‘disabled’ person in the EEA includes a person who has HIV and AIDS).

The EEA covers everyone except the South African National Defence Force (SANDF), the National Intelligence Agency (NIA) and Secret Services.

The EEA also allows for positive discrimination where the criteria applied is necessary for the job. For example, it would be necessary to employ a female security guard to search female employees.

The Affirmative action in the Public Service Act

This Act covers employment in the public sector (government service). The Constitution says the Public Service must become broadly representative of the South African population. All departments of the Public Service must have affirmative action programmes which say what steps they are going to take to make their departments more equally representative of previously disadvantaged groups (black people, women and disabled).