How unfair discrimination will cost your company its compliance certification

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Chapter 2 prohibits unfair discrimination in any employment policy or practice on a prohibited or arbitrary ground. These grounds are:

“This means,” continues Chagonda, “it is not unfair to discriminate if you take affirmative action measures that are consistent with the purposes of the EEA or – alternatively - distinguish or prefer one candidate above another on the basis of inherent job requirements (IJR).”

A difference in terms and conditions of employment of employees of the same employer performing the same or substantially the same work or work of equal value based on a prohibited or arbitrary ground is unfair discrimination.

“Meaning that if a company is found liable for unfair discrimination, they will not receive a certificate of compliance,” states Chagonda, “cases concluded and published in the last year or 12 months from the effective date would trigger non-compliance certificate.”

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This is line with promulgation of Section 53 criteria for certification which will be one major change brought by the amendment. Companies will need to take great care regarding unfair discrimination claims by employees and grievances should be dealt with appropriately. These will be a quick way to lose an Employment Equity compliance certificate.

Prevention and elimination of harassment in the workplace

The Practice Code on the Prevention and Elimination of Harassment in the Workplace has been approved by the minister.

This Code provides guidance to employers on the forms of harassment which are considered discrimination.

In Biggar v City of Johannesburg (Emergency Management Services) (2017) (LC), unfair discrimination is prohibited and as indicated above it could lead to no certificate of compliance for the company. No certificate of compliance can be a threat and a risk to licence to trade.

To avoid non-compliance employers will need to:

• Conduct survey/ risk assessment on harassment, and take proactive and remedial steps to prevent future cases of harassment.
  
• Have a zero-tolerance attitude to harassment and create an appropriate climate that effectively addresses complaints and not triviliase these.
  
• Align company codes to the policy and ensure the awareness of all stakeholders including third parties.

Further criteria for EEA compliance certificates are the achievement of sectoral targets.

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“Designated employers will be required to set targets based on their sector as consulted with the minister,” says Chagonda. “These targets will be set over a five-year period and measured each year.

“If yearly targets are not achieved, the designated employer will be required to raise justifiable grounds to motivate compliance. The justifiable grounds may range from insufficient recruitment, promotion opportunities, business changes such as closures, mergers, and acquisitions.”

Important steps employers should follow from now onwards are the following:

• Make sure all executives and managers responsible for talent acquisition and development are aware of the eminent changes and the risk to the business.
  
• Develop tools to track appointments, promotions, and development deviations to the EE Plan.
  
• Ensure alignment of EEA targets to KPAs/KPIs as the risk and accountability must be shared, it is no longer only a human resource personnel duty to explain.

“CEOs need to be aware of what is happening as no compliance can be a risk to the business sustainability,” concludes Chagonda. “New EE plans should be drafted in line with the proposed sector targets. EE committees will then need to monitor the progress of the EE plan.”