This article was written by Kelly Armstrong, a candidate attorney at Norton Rose Fulbright South Africa

The new amendments to the Employment Equity Act 55 of 1998 (the EEA) assist employers in defending unfair discrimination claims by enabling employers to show that the alleged unfair discrimination is justifiable.  Prior to the amendment, an employer was only able to escape liability by showing that the discrimination in question was fair.

In a recent case decided prior to the enactment of the amendments which dealt with age discrimination, the Labour Appeal Court held that, although section 11 of the EEA is based on section 9 of the Constitution, the EEA did not entitle an employer to claim that discrimination was justifiable because the EEA did not include a justification provision as in the Constitution.

Therefore, the only avenue open to the employer was to prove that the discrimination was fair on a balance of probabilities.  This is no easy task considering that any discrimination based on a listed ground (one of which is age) is presumed to be unfair.

In determining whether discrimination is fair, a court must consider all the facts.  The position and interest of both the employer and employee should be considered and balanced, bearing in mind the objectives of the EEA, so that the court can make a value judgment.  The overriding consideration is the impact of the discrimination on the employee.

Justifiability, on the other hand, involves a proportionality enquiry, taking into account any defences that the employer may have to the allegation of unfair discrimination, and determining whether the discrimination, although unfair, is connected to a rational objective of the company.

In this case, the retirement age of the company had been increased from 60 to 63 in the year that the applicant (a pilot) turned 60.  The company therefore said that any employee over the age of 57 at the time of the change could choose to work until 63 but would receive a reduced salary.  An employee younger than 57 would be able to work until the age of 63 without a reduction in salary.

In defending the action, the company attempted to argue that the discrimination was justified because age was an inherent requirement of the job.  Seeing as the company had not presented any argument as to fairness, it failed to rebut the presumption of unfair discrimination and the employee was awarded R50 000 as compensation.

Going forward, companies will be able to argue the justifiability of unfair discrimination in terms of the EEA amendments and will not be limited to showing the fairness of the discrimination in order to escape liability.

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