The Employment Equity Act 55 of 1998 (EEA) aims to achieve workplace equity by promoting equal opportunities and fair treatment. The Act further seeks to implement affirmative actions to uplift and aid disadvantaged groups in the workplace.

Section 2 of the Act highlights the fundamental purpose of the Act, which is to prevent unfair discrimination in the workplace through the promotion of equal opportunities for all employees irrespective of any arbitrary ground (examples of arbitrary grounds are race, gender, sex, religion, age) and to ensure that there is fair treatment for all. The Act further demonstrates that it is of utmost importance that employers address and combat disadvantages in the workplace that predominately affect designated groups.

Section 6(1) of the EEA is also paramount. This section states that no person may be unfairly discriminated against. The test for unfair discrimination is found in Section 11 of the EEA, where an employer would need to prove that, on a balance of probabilities, the alleged discrimination of the listed grounds did not occur or that the discrimination is rational and not unfair or is otherwise justified.

The EEA is to be implemented by every employer. However, specific sections in the Act would only apply to certain entities.

Chapter 2 of the EEA applies to all employers and employees, and Chapter 3 only applies to designated employers. The EEA applies to all employees and employers, excluding the South African National Defence Force, National Intelligence Agency, and South African Secret Services.

Contravening the EEA may lead to unfair discrimination disputes at the CCMA and Labour Court or Compliance Orders being issued. In addition, there are imposed penalties for contravening the EEA, and employers may be faced with the prospect of not being able to enter into business with any government entity, thus significantly restricting their business potential. Failure to comply with the provisions limits the business potential and may cost the business tremendously; employers are therefore encouraged to adhere to the provision laid out in the EEA.

By Cass-Leigh Oranje

Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)