Mere Compliance with the Employment Equity Act Results in No or Insignificant EE Transformation

Progress in the achievement of Employment Equity (‘EE’) in the workplace has been painfully slow since the introduction of the EE Act 55 of 1998 in 2000, as evidenced by the following selected extracts from recent Commission for Employment Equity (‘CEE’) Reports.

‘The trends in the 2014/2015 report remain relatively unchanged. Change remains slow and again means that the Sunset Clause is a ‘pie in the sky’ concept. What is further alarming s that how in some of the provinces and sectors we have witnessed a decline in black representation where it matters most’ – CEE Annual Report 2014-2015.

‘The Report again demonstrates a very slow pace of transformation in the SA Workplaces. Black people, and Persons with Disabilities remain under represented at Top and Senior Management levels. It is not an exaggeration to say that not much has changed’ – CEE Annual Report 2016-2017.

‘Twenty years on and we are still nowhere celebrating effective implementation of transformation legislation. We cannot even begin to contemplate the implementation of a ‘Sunset’ clause on this legislation’ – CEE Annual Report 2017-2018.

What the EE Act requires a designated employer to do in order to comply

In terms of the EE Act, an employer must in consultation with workforce representatives:[1]

  • Conduct an analysis of the workforce profile.[2]
  • Conduct an analysis of policies, procedures, practices and working environment to identify barriers that adversely affect persons from Designated Groups[3] i.e. barriers to their advancement and retention in the workplace.
  • Develop a compliant[4] EE Plan, which will make reasonable progress in the achievement of Employment Equity in that employer’s workforce.[5]  
  • Implement the EE Plan.[6]
  • Annually submit a report to Director-General (‘D-G’) of the Department of Labour (‘DoL’).[7]

An employer must further:

  • Appoint a Senior EE manager.[8]
  • Inform the workforce.[9]
  • Keep records.[10]

The thinking behind the Barrier Analysis requirement of the EE Act

Underlying the requirement of an analysis of an organisation’s Policies, Procedures, Practices and Working Environment to identify barriers that adversely affect persons from Designated Groups is the recognition that HR policies and procedures, their application in practice and the working environment have a direct impact on the advancement, development and retention of the employees the EE Act is trying to benefit i.e. Designated Groups.

The authors of the EE Act recognised that policies and procedures in categories such as recruitment and selection, job classification and grading, performance and evaluation systems, training and development and succession and experience planning, etc. are intended to enhance employees’ performance, development and advancement. Hence the inclusion of these in the Categories listed in the EEA2, EEA12 and EEA13 forms.

However, policies, procedures and their ensuing practices often fail to achieve such objectives or discriminate against persons from designated groups as a result of bias or shortcomings in the policies and/or procedures, or in their application in practice by line managers. Such bias or shortcomings are barriers to the advancement of persons from designated groups. This is apart from the more obvious barriers employers mostly focused on when conducting barriers analyses.

The above is reinforced by the Code of Good Practice on the Integration of Employment Equity into Human Resource Policies & Practices (‘EE & HR Integration Code’), which includes detail of procedures associated with HR programmes that render the application of their resultant policies and associated practices, effective. Of particular relevance regarding this Code is the statement from the Code that ‘This Code is not intended to be a comprehensive Human Resources Code, but rather an identification of areas of human resources that are key to employment equity and can be used to advance equity objectives’.

The working environment impacts on the performance, accommodation, motivation and retention of all race, gender and disability groups. A working environment that fails to facilitate optimal performance, accommodation, motivation and retention of all race, gender and disability groups impacts negatively on the advancement and retention of persons from designated groups as a result of barriers thereto.

The identification of all barriers in policies, procedures, practices and working environment in the 18 Categories and their resultant removal is therefore critical to the advancement of persons from designated groups and the achievement of equitable representation of suitably qualified persons. This is intended to be achieved through:

  1. The barriers analysis and identification process.
  2. The development of AA measures intended to address or remove the identified barriers for inclusion in the employer’s EE Plan.
  3. The implementation of the EE Plan’s AA measures during the period of the EE Plan.

Any employer that is serious about transformation in the Employment Equity space should follow a thorough process in conducting the required barriers analysis.

No provision in the EE Act for Barriers Analysis methodology and EE Plan implementation

Neither the EE Act as amended, the Regulations or any of the EE Codes of Good Practices contain any provisions or directions as to how an employer should go about identifying barriers.

The same applies to the monitoring and evaluation of the implementation of an employer’s EE Plan. Whilst the EE Act does require an employer to consult with workforce representatives regarding the implementation of its EE Plan[11] and to state in its EE Plan the persons in the workforce including senior managers responsible for monitoring and implementing the plan[12], the EE Act, Codes and Regulations are silent on how an employer is to do so and manage its EE transformation.

Consequences of ‘ticking the boxes’ compliance approach to EE

The above silence in the EE Act and its accompanying prescripts have led to the vast majority of employers who approach EE with a ‘tick the boxes’ compliance attitude, conducting wholly inadequate barriers analyses, resulting in even more inadequate AA measures, and whose monitoring and evaluation of the timeous implementation of both their numerical goals and AA measures are mostly ineffective. This was borne out by over 40 EE Risk Assessments[13] conducted by EES-SIYAKHA between 2015 and 2018. Trends detected during these Assessments with regards to participants’ barriers analyses were:

  • A lack of any or meaningful consultation.
  • The use of surveys without follow up focus groups[14]
  • Breaking the EE Consultative Forum (‘EECF’) into task teams to come up with barriers in the different Categories[15]
  • The use of surveys with follow-up focus groups, but not covering all the required Categories.
  • Very superficial analyses, only identifying barriers that stand out.
  • No examination of existing policies and procedures with the aim of identifying barriers.
  • Focusing wholly on unfair discrimination.
  • No examination of how Policies and Procedures are applied in practice.
  • No or little examination of barriers in the working environment.
  • Very little, if any, connection between the identified barriers and the EE Plan’s AA measures, as required.

The following deficiencies were identified with regard to the monitoring and evaluation of EE Plan implementation:

  • No involvement therein of the EECF.
  • Only aspect being monitored is Numerical Goals achievement.
  • Where the EECF is involved, no link between its recommendations and any decision-making body that can act thereon.
  • Absence of the establishment of a special EE decision-making/facilitating EE Management Structure (see below) to which EECFs can direct their recommendations and participate in.
  • Absence of regular meetings at which the EE Plan’s implementation can be monitored and evaluated.
  • Insufficient or poor preparation of data and information to be evaluated and monitored.

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