Employment Equity Act, 1998 (Act No. 55 of 1998)Code of Good PracticeIntegration of Employment Equity into Human Resource Policies and Practices5. Implementing employment equity |
| 5.1 | SCOPE |
| 5.1.1 | Implementing employment equity involves two key initiatives: |
| 5.1.1.1 | Eliminating unfair discrimination in human resource policies and practices in the workplace; and |
| 5.1.1.2 | Designing and implementing affirmative action measures to achieve equitable representation of designated groups in all occupational categories and levels in the workplace. |
| 5.1.2 | This section provides a general outline of these areas and the different conceptual and methodological approaches used to deal with them in the workplace. |
| 5.2 | IMPACT ON EMPLOYMENT EQUITY |
Eliminating unfair discrimination
| 5.2.1 | Section 6 of the Employment Equity Act prohibits unfair discrimination2 against employees or job applicants on one or more grounds of personal or physical characteristics like race, gender, sex, 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. These "prohibited" or other arbitrary grounds cannot be taken into account in employment decision-making. However, it is fair for them to be taken into account where they are relevant to either affirmative action measures or the inherent requirements of a job. |
| 5.2.2 | The Act prohibits both direct and indirect unfair discrimination. Direct unfair discrimination is easy to identify in the workplace because it makes a direct distinction on the basis of one or more of the prohibited grounds. Indirect unfair discrimination (often called adverse impact or systemic discrimination) on the other hand, is more difficult to recognise. Indirect unfair discrimination occurs when a policy and practice appears to be neutral but has a discriminatory effect or outcome for a particular group of employees and cannot be justified. The employer's motive and intent is generally considered to be irrelevant in determining whether unfair discrimination has occurred. In certain circumstances, the refusal to make reasonable accommodation of an employee's needs and circumstances, where this can be done without undue hardship to the employer, can constitute unfair discrimination. |
| 5.2.3 | Equality can involve a formal notion of treating everyone who is in a similar position the same. This can perpetuate unfairness when those who hold similar positions e.g. all senior managers have different needs and circumstances that impact on their ability to perform effectively. The Constitution requires employers to move beyond formal equality to substantive equality by acknowledging the differences between employees and treating them differently on the basis of those differences. This is necessary to ensure that all employees are treated fairly. Equity therefore invokes the requirement of "fair" treatment in order to achieve substantive equality as an outcome in the workplace. Equal treatment and equal opportunity, like equality, subjects everyone to the same rules without distinction. Equity requires changing the rules so that their application is fair. |
| 5.2.4 | Unfair discrimination is prohibited in the workplace. In order for employers to execute one of their primary responsibilities of eliminating all forms of unfair discrimination in the workplace, it is recommended that all employers should conduct an audit and analysis of all their employment policies and practices, as well as the working environment and facilities. The audit should identify whether any of the policies or practices applicable in the workplace contain any unfair discrimination or barriers to the recruitment, promotion, advancement and retention of members of designated groups. Once the actual or potential barriers are identified, an employer should consult about the strategies for eliminating these barriers. These strategies should be incorporated into the development and implementation of the Employment Equity Plan for that workplace. Regular monitoring in the workplace should occur to ensure that the unfair discriminatory policies or practices do not recur or manifest themselves in different ways. |
Implementing affirmative action measures to achieve employment equity
| 5.2.5 | Removing barriers3 is only the first step towards ensuring fairness and equity in the workplace. In the context of historical disparities in South Africa, the Act requires employers, employees and representative trade unions to jointly develop strategies to advance designated groups by adopting appropriate affirmative action measures and incorporating them into formal Employment Equity Plans. Affirmative action measures are essentially remedial measures designed to redress the imbalances of the past. This is a mandatory strategy to achieve equity in employment as an outcome4. |
| 5.3 | POLICY AND PRACTICE |
| 5.3.1 | This section provides guidance in relation to the audit, analysis and consultation aspects of the employer's obligations5. |
| 5.3.2 | Under the Act every designated employer is required to undertake four processes when developing a strategy to implement employment equity: |
| 5.3.2.1 | consulting with its employees and representative trade unions; |
| 5.3.2.2 | auditing and analysing all employment policies and practices in the workplace and developing a demographic profile of its workforce; |
| 5.3.2.3 | preparing and implementing an employment equity plan; and |
| 5.3.2.4 | reporting to the Department of Labour on progress made on the implementation of its employment equity plan. |
The policy and practice analysis
| 5.3.3 | Employers should develop realistic employment equity plans that are workplace specific and capable of measurement. This should be informed by conducting a comprehensive audit and analysis of all existing and potentially unfair discriminatory practices and barriers. |
| 5.3.4 | The analysis of policies and practices as well as other written documentation can be done through the collection of the information, listing what is applicable and identifying whether any documentation reflects direct or indirect unfair discrimination or barriers to the advancement of designated groups. |
| 5.3.5 | Practices are generally the informal or unwritten rules that prevail in the workplace and can be analysed through a combination of employee attitudinal surveys, individual interviews and focus groups to establish perceptions of their impact on achieving employment equity. |
| 5.3.6 | The relevant questions to be posed in the analysis would involve looking at whether the policy or practice is: |
| 5.3.6.1 | unfairly discriminatory; |
| 5.3.6.2 | valid; |
| 5.3.6.3 | applied consistently to all employees; and |
| 5.3.6.4 | compliant with legislation. |
| 5.3.7 | An employer should formulate appropriate barrier removal measures for each of the forms of unfair discrimination identified in the audit of policies and practices. These mechanisms would also be the subject of consultation and should be incorporated into the Employment Equity Plan of that employer. |
Appropriate timeframes, strategies and responsibilities should be allocated for each barrier removal measure
| 5.3.8 | An employer should communicate the outcome of the audit and analysis to employees in as transparent a manner as possible. The method of communication will depend on the culture of the employer; the frequency and common terms of communication; and the role of the Employment Equity Forum or other consultative structure. The leadership of the employer should also receive feedback to be able to provide strategic input with regard to appropriate barrier removal. |
Developing a workforce profile and setting numerical targets for equitable representivity
| 5.3.9 | A workforce profile is a snapshot of employee distribution in the various occupational categories and levels. Under-representation refers to the statistical disparity between the representation of designated groups in the workplace compared to their representation in the labour market. This may indicate the likelihood of barriers in recruitment, promotion, training and development. |
| 5.3.10 | Collection of information for the workforce profile is done through an employee survey. It is preferable for employees to identify themselves to enable the employer to allocate them to a designated group. Only in the absence of an employee's self-identification, can an employer rely on existing or historical data to determine the employee's designated group status. |
| 5.3.11 | The workforce profile should indicate the extent to which designated groups are under-represented in that workforce in occupational categories and levels. This should be compared to the Economically Active Population at national, provincial or regional, or metropolitan economically active population or other appropriate benchmarks. Employers should set numerical targets for each occupational category and level informed by under-representation in the workforce profile and national demographics. The extent of under-representation revealed by the workforce profile represents the ideal goal reflected as the percentage for each occupational category and level for that workplace. |
| 5.3.12 | Employers, employees and trade unions should prioritise the least under-represented groups within the workforce. For example, an employer in the consultation process should focus more on the areas where the most imbalances appeared during the audit and analysis. |
| 5.3.13 | Numerical targets will contribute to achieving a critical mass of the excluded group in the workplace. Their increased presence and participation will contribute to the transformation of the workplace culture and to be more affirming of diversity. Employers are required to make reasonable progress towards achieving numerical targets to achieve equitable representation. This means that an employer should track and monitor progress on a regular basis and update its profile continuously to reflect demographic changes. |
| 5.3.14 | Consultation |
The success of employment equity depends largely on the efficacy of the consultation process. Employers, employees and trade unions must be willing to play a constructive role in the consultation process. Regular and meaningful consultation will contribute to a joint commitment to workplace transformation. It may also foster workplace democracy and productivity. Consultation will ensure that realistic employment equity plans are prepared which address the training and development of designated groups and the adaptation of the workplace to affirm difference.
The involvement of trade unions in the consultation process is not enough. Employers must also consult with employees from across all occupational categories and levels.
| 5.3.15 | It is essential to ensure that whatever form consultation takes, it does not undermine existing collective bargaining processes or existing relationships. |
| 5.3.16 | Transformation committees or other structures that already exist, which bring together employees and management, may need to be adopted in order to serve the consultation purposes of the Act. Necessary adaptations may include bringing in representatives from segments of the workforce that do not already participate, including designated or non-designated groups or trade unions. Where workplace forums exist, there should be a vehicle for consultation, and attempts should be made to ensure that these are as representative as possible. Where no structures exist or current structures are impractical for employment equity consultation, the employer should initiate a process to establish a consultative structure and or support an employee initiative of this nature. Criteria for appointment of representatives to the structure, the number of representatives, their roles and responsibilities and mandates will have to be clearly set out. The representatives on the structure should be trained on understanding and implementing the key components of the Employment Equity Act. |
| 5.3.17 | Disputes will inevitably arise in the course of consultation. Employees may feel that they are not being sufficiently included in decision-making, or employers may grow frustrated at delays that are occasioned as a result of the need to consult. |
| 5.4 | KEY LINKS TO OTHER TOPICS IN THE CODE |
| 5.4.1 | Performance management - senior management performance should be, amongst others, measured against the extent to which they have achieved their numerical targets. |
| 5.4.2 | Recruitment and selection - an employer must take cognisance of numerical targets when offering employment to suitably qualified job applicants. |
| 5.4.3 | Promotions - succession planning and decisions on promotion must take account of an employer's numerical targets and ensure that under-represented groups in identified categories are developed and promoted. |
| 2 | Unfair discrimination can take place by means of an action or an omission. |
| 3 | A barrier exists where a policy and practice, which also includes procedures, guidelines or rules, or an aspect of it that limits the opportunities of employees. |
| 4 | This is covered in more detail in the Code of Good Practice on the Preparation, Implementation and Monitoring of Employment Equity Plans. |
| 5 | The planning and reporting processes are dealt with in the Code of Good Practice on the Preparation, Implementation and Monitoring of Employment Equity Plans. |