Answering the Key Questions: Cliffe Dekker Hofmeyr's Employment Law Practice on the New Employment Equity Amendment Act
Key Highlights :
The South African Employment Equity Amendment Act of 2022 (Act 4 of 2022) brings with it a number of big changes to the Employment Equity Act of 1998 (Act 55 of 1998). President Cyril Ramaphosa has signed the Act into law, and the effective date is yet to be proclaimed by the President. Cliffe Dekker Hofmeyr's Employment Law Practice answers the key questions concerning the Act and its implications for employers and employees.
The Employment Equity Act (EEA) applies to all employees and employers who operate in South Africa, except the South African National Defence Force, National Intelligence Agency and South African Secret Services. While the EEA applies to all employers (excluding those listed above), certain sections of the EEA only apply to designated employers. The amendments to the EEA will bring about a change to the definition of “designated employer” to restrict the application of these sections to a reduced group of employers and relieve some of the administrative burden on smaller employers.
The primary purpose of the EEA is to promote the right to equality, to ensure that all employees receive equal opportunities and that employees are treated fairly by their employers. A core focus of the EEA is the implementation of employment equity and affirmative action to redress the effects of historical discrimination. The EEA prohibits discrimination against an employee, directly or indirectly, in any employment policy or practice on the grounds of race, gender, 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.
The amendments to the EEA will benefit smaller employers, as they will no longer be required to comply with the obligations of a designated employer relating to affirmative action, including the development and implementation of employment equity plans and reporting to and submission of employment equity reports to the Department of Employment and Labour. Smaller employers will still be entitled to obtain a certificate of compliance under section 53 of the EEA.
The definition of "people with disabilities" is also substituted to align with the definition in the United Nations Convention on the Rights of Persons with Disabilities, 2007. This enhanced definition accords with a more expansive international understanding of what constitutes disabilities.
The amendment also removes the requirement of certification by the Health Professionals Council of South Africa (HPCSA) of psychological testing and similar assessments.
The new section 15A introduces sectoral numerical targets to ensure the equitable representation of people from designated groups (historically disadvantaged groups of people based on race, gender, and disability) at all occupational levels in the workforce. The amendment empowers the Minister of Employment and Labour (Minister) to identify national economic sectors for purposes of the administration of the EEA and set numerical targets for each such sector. The sectoral numerical targets will be determined by the Minister in consultation with the Employment Equity Commission.
Cliffe Dekker Hofmeyr's Employment Law Practice is well placed to assist employers in understanding and complying with the Employment Equity Amendment Act 4 of 2022 and the Employment Equity Act of 1998. Employers should contact their legal adviser to ensure they are compliant with the new legislation.
