This article was written by Douglas de Jager , an associate at Norton Rose Fulbright South Africa
Section 9 of the Constitution of the Republic of South Africa states that “[n]o person may unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status…” and that “[n]ational legislation must be enacted to prevent or prohibit unfair discrimination”.
In South Africa, women comprise approximately 31.1% of the active formal workforce, and the regulatory environment has been a key enabler in promoting recognition of the requirement of gender equality.
Both the Employment Equity Act, 1998 (EEA), and the Labour Relations Act, 1995 (LRA), contain forceful provisions to protect employees from unfair discrimination due to gender, and other grounds, in the workplace.
The EEA requires employers to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination against employees on the grounds of gender. An employee includes applicants for employment so the EEA also regulates hiring practices.
This is viewed as an on-going process. To ensure compliance with this requirement employers must:
- appoint an employment equity officer;
- consult with its employees and conduct an analysis of its employment policies, practices, procedures and the working environment to identify employment barriers which adversely affect people from designated groups (including gender);
- prepare and implement an employment equity plan which will achieve reasonable progress towards employment equity in its workforce;
- set defined goals with a timeline to rectify imbalances including the underrepresentation of a particular gender or group of persons; and
- submit an annual report on these measures to the Department of Labour.
Non-compliance with the EEA carries significant penalties and the Department of Labour may impose a fine up to R1.5 million or 2% of an employer’s turnover, whichever is greater, for a first-time offence.
The LRA is wide-ranging and also regulates the conditions of employment by prohibiting unfair labour practices and the dismissal of employees.
Unfair discrimination, either direct or indirect, against an employee based on gender will be regarded as an unfair labour practice which is punishable and the employee may have to be compensated by up to 12 months’ salary. Examples of unfair labour practices based on gender include demotion, promotion, unequal pay or no access to opportunities.
In the case of a dismissal of an employee on grounds of gender, including constructive dismissal which is when an employer makes the conditions of employment so intolerable that employee resigns, the employer can be forced to pay up to 24 months’ salary as compensation in addition to having to reinstate the employee with back pay.
While there may have been historical imbalances and gender discrimination endemic in the workplace, there are now onerous obligations on employers to take active steps towards gender equality. The significant enforcement mechanisms render this task to not only a moral concern but a business imperative with hard‑hitting consequences for non-compliance.