By Aadil Patel Director, Employment Law, Cliffe Dekker Hofmeyr
Section 42 of the amended Employment Equity Act, No 55 of 1998, (EEA), as amended by the Employment Equity Amendment Act, No 47 of 2013, deals with the assessment of compliance with employment equity by a designated employer.
The EEA places a positive duty on a designated employer to take steps to eliminate unfair discrimination in the workplace.
In terms of s42, the Director-General of the Department of Labour is empowered to determine whether a designated employer is implementing employment equity in accordance with the EEA.
The Director-General may take the following factors into account:
- the extent to which suitably qualified people from and among the different designated groups, as defined in the eea, are equitably represented within each occupational level in that designated employer’s workforce in relation to the demographic profile of the national and regional economically active population;
- the reasonable steps (no longer ‘efforts’) taken by a designated employer to train suitably qualified people from the designated groups;
- the reasonable steps taken by the designated employer to implement its employment equity plan;
- the extent to which the designated employer has made progress in eliminating employment barriers that adversely affect people from designated groups; and
- the reasonable steps taken by an employer to appoint and promote suitably qualified people from the designated groups and any factor that may be prescribed.
The Director-General may also take into account s15 of the EEA, which deals with the affirmative action measures to be implemented by a designated employer.
Significantly, the EEA provides that the Director-General may consider the steps taken by the designated employer to comply with the Act and not merely the reasonable efforts to comply with the EEA. The significance of this amendment is that designated employers should show that they are taking positive steps to comply with the EEA.
The Director-General may, in terms of s20(7) apply to the court for a sanction to be imposed on a designated employer who does not comply with its employment equity plan. An employer may, in an assessment or in any court proceedings, raise any reasonable grounds to justify its failure to comply. These grounds may include any labour market related conditions, such as skills-shortage.
Employers are advised to monitor their compliance in order to avoid being heavily fined.
For more information please contact Aadil Patel at firstname.lastname@example.org