«EMPLOYMENT EQUITY ACT 55 OF 1998 (Gazette No. 19370, Notice No. 1323 dated 19 October 1998. See Act for various commencement dates) CODE OF GOOD ...»
(4 August 2005 - to date)
EMPLOYMENT EQUITY ACT 55 OF 1998
(Gazette No. 19370, Notice No. 1323 dated 19 October 1998. See Act for various commencement dates)
CODE OF GOOD PRACTICE ON THE INTEGRATION OF EMPLOYMENT EQUITY INTO HUMAN
RESOURCE POLICIES AND PRACTICES
General Notice 1358 in Government Gazette 27866 dated 4 August 2005. Commencement date: 4 August
Notice is hereby given that the Code of Good Practice on the Integration of Employment Equity into Human Resource Policies and Practices set out in the schedule is issued by the Minister of Labour on the advice of the Commission for Employment Equity, in terms of section 54(1)(a) of the Employment Equity Act, 1998 (Act No 55 of 1998).
MMS MDLADLANA, MP
MINISTER OF LABOUR
3. SCOPE AND LEGAL PRINCIPLES
4. STRUCTURE OF THE CODE
5. IMPLEMENTING EMPLOYMENT EQUITY
PART A: COMMENCING EMPLOYMENT
6. JOB ANALYSIS AND JOB DESCRIPTIONS
7. RECRUITMENT & SELECTION
10. MEDICAL, PSYCHOLOGICAL & OTHER SIMILAR ASSESSMENTS
PART B: DURING EMPLOYMENT
11. TERMS AND CONDITIONS OF EMPLOYMENT
13. JOB ASSIGNMENTS
14. PERFORMANCE MANAGEMENT
15. SKILLS DEVELOPMENT
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16. PROMOTION AND TRANSFER
17. CONFIDENTIALITY AND DISCLOSURE OF INFORMATION
18.2. IMPACT ON EMPLOYMENT EQUITY
20. DISCIPLINE, GRIEVANCE AND DISPUTE RESOLUTION
PART C: ENDING EMPLOYMENT
21. TERMINATING EMPLOYMENT
22. EXIT INTERVIEWS
1. FOREWORD The Employment Equity Act, 55 of 1998 ("the Act") imposes a duty on employers to eliminate unfair discrimination. It also provides a framework for the attraction, development, the advancement and retention of an employer's human resource talent. Research has shown that employers can increase productivity, motivation and resourcefulness in the workplace when they invest in their people and treat them with fairness and equity. This is secured by eliminating the historical barriers that prevent the advancement of the designated groups (Black people including African, Coloured and Indian, Women and People with Disabilities). This ensures that positive or affirmative action measures are in place to expedite their growth and advancement.
In the context of challenges of a compounded diverse global economy and constraints around infrastructure, skills, poverty, unemployment and service delivery, employers are increasingly aware that having racial,gender and disability diversity is key to business growth and development.
Sustaining this growth requires ongoing commitment toward eliminating barriers, including skills development, in its general and specific forms. Some of the main challenges for employers include;
attracting, managing, developing and retaining talent in the workforce through effective human resource management. In this context, the implementation of effective employment equity strategies will assist employers to maximise human resource development through the eliminating unfair discrimination and barriers and by promoting affirmative action. This Code provides guidelines to assist employers in implementing these initiatives.
2.1. The objective of this Code is to provide guidelines on the elimination of unfair discrimination and the implementation of affirmative action measures in the context of key human resource areas, as provided for in the Act. This Code is not intended to be a comprehensive human resources Code, but rather an identification of areas of human resources that are key to employment equity and can be used to advance equity objectives.
2.2. The guidelines in the Code will enable employers to ensure that their human resource policies and practices are based on non-discrimination and reflect employment equity principles at the commencement of employment, during employment and when terminating employment.
3. SCOPE AND LEGAL PRINCIPLES
3.1. This Code is issued in terms of section 54 of the Employment Equity Act and must be read in conjunction with the Act and other Codes issued in terms of the Act.
3.2. The Code should also be read in conjunction with the Constitution of South Africa and all relevant
legislation, including the following:
3.2.1. the Labour Relations Act, 66 of 1995 as amended;
3.2.2. the Basic Conditions of Employment Act, 75 of 1997 as amended;
3.2.3. the Skills Development Act, 97 of 1998;
3.2.4. the Skills Development Levies Act, 9 of 1999; and 3.2.5. the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000.
3.3. This Code applies to all employers and employees covered by the Act.
3.4. This Code is intended to be a tool to aid employers to implement employment equity by providing principles that should be incorporated into employment equity plans and that guide policies and practices. This Code is also intended to provide guidelines to employers to consider and apply as appropriate to their circumstances.
4. STRUCTURE OF THE CODE
4.1. The structure of this Code mirrors the life cycle of an employee in employment. It deals with possible barriers and unfair discrimination that could occur at each phase, including commencing employment, during employment and on termination of employment. It also describes affirmative action measures that could be used at each phase to advance the objectives of the Act.
4.2. Each topic focuses on the following areas:
Code of Good Practice on the Handling of Sexual Harassment Cases; Code of Good Practice on the Preparation, Implementation and Monitoring of Employment Equity Plans; Code of Good Practice on the Employment of People with Disabilities and Code of Good Practice on Key Aspects of HIV/AIDS and Employment.
4.2.1. Scope. This section provides a brief definition of the topic in the context of the employment life cycle.
4.2.2. Impact of employment equity. This section deals with non-discrimination principles and affirmative action measures that are relevant to the topic.
4.2.3. Policy and practice matters. This section provides information about the policy and practice matters that could arise, and makes suggestions regarding their implementation.
4.2.4. Link with other areas. This section identifies cross-references to other key topics as well as other relevant Codes and legislation dealt with in the Codes.
5. IMPLEMENTING EMPLOYMENT EQUITY
5.1. SCOPE 5.1.1. Implementing employment equity involves two key initiatives:
5.1.2. This section provides a general outline of these areas and the different conceptual and methodological approaches used to deal with them in the workplace.
5.2. IMPACT ON EMPLOYMENT EQUITY Eliminating unfair discrimination 5.2.1. Section 6 of the Employment Equity Act prohibits unfair discrimination against employees or job applicants on one or more grounds of personal or physical characteristics like race, gender, sex, 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. These "prohibited" or other arbitrary grounds cannot be taken into account in employment decision-making. However, it is fair for them to be taken into account where they are relevant to either affirmative action measures or the inherent requirements of a job.
Unfair discrimination can take place by means of an action or an omission.
5.2.2. The Act prohibits both direct and indirect unfair discrimination. Direct unfair discrimination is easy to identify in the workplace because it makes a direct distinction on the basis of one or more of the prohibited grounds. Indirect unfair discrimination (often called adverse impact or systemic discrimination) on the other hand, is more difficult to recognise. Indirect unfair discrimination occurs when a policy and practice appears to be neutral but has a discriminatory effect or outcome for a particular group of employees and cannot be justified. The employer's motive and intent is generally considered to be irrelevant in determining whether unfair discrimination has occurred. In certain circumstances, the refusal to make reasonable accommodation of an employee's needs and circumstances, where this can be done without undue hardship to the employer, can constitute unfair discrimination.
5.2.3. Equality can involve a formal notion of treating everyone who is in a similar position the same.
This can perpetuate unfairness when those who hold similar positions e.g. all senior managers have different needs and circumstances that impact on their ability to perform effectively. The Constitution requires employers to move beyond formal equality to substantive equality by acknowledging the differences between employees and treating them differently on the basis of those differences. This is necessary to ensure that all employees are treated fairly. Equity therefore invokes the requirement of "fair" treatment in order to achieve substantive equality as an outcome in the workplace. Equal treatment and equal opportunity, like equality, subjects everyone to the same rules without distinction. Equity requires changing the rules so that their application is fair.
5.2.4. Unfair discrimination is prohibited in the workplace. In order for employers to execute one of their primary responsibilities of eliminating all forms of unfair discrimination in the workplace, it is recommended that all employers should conduct an audit and analysis of all their employment policies and practices, as well as the working environment and facilities. The audit should identify whether any of the policies or practices applicable in the workplace contain any unfair discrimination or barriers to the recruitment, promotion, advancement and retention of members of designated groups. Once the actual or potential barriers are identified, an employer should consult about the strategies for eliminating these barriers. These strategies should be incorporated into the development and implementation of the Employment Equity Plan for that workplace. Regular monitoring in the workplace should occur to ensure that the unfair discriminatory policies or practices do not recur or manifest themselves in different ways.
Implementing affirmative action measures to achieve employment equity 5.2.5. Removing barriers is only the first step towards ensuring fairness and equity in the workplace.
In the context of historical disparities in South Africa, the Act requires employers, employees and representative trade unions to jointly develop strategies to advance designated groups by adopting appropriate affirmative action measures and incorporating them into formal A barrier exists where a policy and practice, which also includes procedures, guidelines or rules, or an aspect of it that limits the opportunities of employees.
Employment Equity Plans. Affirmative action measures are essentially remedial measures designed to redress the imbalances of the past. This is a mandatory strategy to achieve equity in employment as an outcome.
5.3. POLICY AND PRACTICE 5.3.1. This section provides guidance in relation to the audit, analysis and consultation aspects of the employer's obligations.
5.3.2. Under the Act every designated employer is required to undertake four processes when developing a
strategy to implement employment equity:
126.96.36.199. consulting with its employees and representative trade unions;
The policy and practice analysis 5.3.3. Employers should develop realistic employment equity plans that are workplace specific and capable of measurement. This should be informed by conducting a comprehensive audit and analysis of all existing and potentially unfair discriminatory practices and barriers.
5.3.4. The analysis of policies and practices as well as other written documentation can be done through the collection of the information, listing what is applicable and identifying whether any documentation reflects direct or indirect unfair discrimination or barriers to the advancement of designated groups.
5.3.5. Practices are generally the informal or unwritten rules that prevail in the workplace and can be analysed through a combination of employee attitudinal surveys, individual interviews and focus groups to establish perceptions of their impact on achieving employment equity.
5.3.6. The relevant questions to be posed in the analysis would involve looking at whether the policy or
This is covered in more detail in the Code of Good Practice on the Preparation, Implementation and Monitoring of Employment Equity Plans.
The planning and reporting processes are dealt with in the Code of Good Practice on the Preparation, Implementation and Monitoring of Employment Equity Plans.
188.8.131.52. applied consistently to all employees; and 184.108.40.206. compliant with legislation.
5.3.7. An employer should formulate appropriate barrier removal measures for each of the forms of unfair discrimination identified in the audit of policies and practices. These mechanisms would also be the subject of consultation and should be incorporated into the Employment Equity Plan of that employer.