Part of an employer's affirmative action obligations in accordance with Section 21 of  the Employment Equity Act, 1998 (as amended) (EEA) and the newly enacted Employment Equity Regulations, 2025 (General Administrative EE Regulations) is the duty to report on progress made annually to the Director-General of the Department of Employment and Labour (DoEL).

Employers who have been designated employers for a while will be familiar with this process. However, the coming reporting period will be slightly different. This is because it will be the first time designated employers will be reporting under the new General Administrative EE Regulations.

Further information on what should go into the first report and some grey areas requiring clarification are outlined below.

When is the first report due?

In terms of the General Administrative EE Regulations, designated employers who submit their first reports electronically will be able to do so from 1 September 2025 to 15 January 2026. If an employer wishes to submit a report physically, it will be able to do so by hand delivering a copy of the report to the DoEL’s head office between 1 September 2025 and 1 October 2025.

Where an employer becomes a designated employer after the first working day of April, it is only required to submit its first report in the following reporting cycle.

Consult on the report

As with the workforce analysis and the EE Plan, designated employers are required to consult with employee representatives on the section 21 report before the report is submitted. Many designated employers have established an employment equity committee to comply with their consultation obligations.

Employee representatives must, in terms of section 16(2), reflect the interests of employees across all occupational levels of the workforce, employees from designated groups and employees who are not from designated groups. The employer must also consult with a representative trade union representing employees at the workplace (if applicable).

What period and information does the report cover?

Prescribed information for reporting purposes is contained in the amended EEA2 form, annexed to the General Administrative EE Regulations. Employers must use this format when reporting. When reporting online, an electronic version of the form will need to be completed on the DoEL’s system.

Importantly, designated employers will need to select the applicable sector, as the DoEL has previously explained during roadshows, that this will automatically populate certain information insofar as the five-year sector targets are concerned. Further, the designated employer will need to select whether it has used the national or provincial economically active population (as reflected in the EE Plan) as this will continue to apply for the duration of the EE plan and subsequent reporting cycles.

Broadly, the form has the following sections: (i) the employer’s workforce profile and numerical targets for the current year; (ii) workforce movements (including the number of recruitments, promotions and terminations); (iii) the five-year sector targets and numerical goals; (iv) the annual numerical targets for the following year; (v) consultation and affirmative action measures; and (vi) monitoring and evaluation.    

During engagements with stakeholders, representatives of the DoEL indicated that the first report will be a ‘base report’. What we understand this to mean is that the report that is submitted in the 2025 reporting period will not be in respect of, and the employer will not be assessed against, its current or previous EE Plan (ie the one in force prior to, or as at, the publication of the five-year sectoral numerical targets and General Administrative EE Regulations), but in respect of the new plan commencing 1 September 2025, which aligns with the five-year sector targets.

Paragraph f) of the Instructions in the EEA2 form confirms this principle. It states that ‘designated employers who report for the first time for the 5-year sector target period will not be measured on their annual EE targets for the first year of reporting’.

Employers will accordingly not be able to report on any progress made towards achieving the numerical goals and objectives in the EE Plan (since the EE Plan would have only just commenced). Rather, the focus will be on the current status of the workforce. The first time that employers will be measured against their annual targets will be in the 2026 reporting period. It would therefore seem that, for purposes of the first report, the workforce profile figures as at the ‘snapshot’ date used for the analysis and reflected in the EE Plan will need to be recorded in section 1 of the EEA2 form.

Further clarity is needed on what designated employers should record under the ‘current year’ targets row, and whether an option for ‘not applicable’ will be available in answer to question 1.3 on whether the designated employer has achieved all the annual numerical targets for the current year. Further, the justifiable reasons listed in 1.4 would similarly not apply in the first reporting period and presumably designated employers will be able to indicate that this is ‘not applicable’ when completing the report.

What is also not clear from the General Administrative EE Regulations is what statistics must be reflected under the ‘workforce movements’ section and what period must be stipulated on page 2 of the EEA2 form – that is, in respect of what period must an employer report on the number of new recruits, promotions, terminations etc in this first report?

The EEA2 form requires designated employers to indicate the preceding 12-month period that the report covers, except for first time reporting, where the period may be shorter. It is hoped that this, and our understanding above, will be clarified during the DoEL’s roadshows that are currently scheduled to take place across the country between 20 May and 3 July 2025. The DoEL has indicated that these roadshows will include a practical demonstration on how to use the EE System Online facilities to capture the report.

What has previously been explained by the DoEL is that once a designated employer has inserted its annual target for the following year, this annual target will be automatically inserted into the designated employer’s next online report and will be used as a benchmark in the next reporting cycle to ascertain whether the designated employer has met its annual target. It is therefore important that designated employers insert accurate information regarding the first annual numerical target (ie next year’s annual target) during this reporting period.

What happens after the report is submitted?

Once a report has been submitted, the DoEL will provide a response to the employer to the effect that:

• the report is rejected because it does not comply with the requirements of the EEA and the General Administrative EE Regulations;
• there are errors in the report, in which event the employer will have an opportunity to correct those errors within a specified time period; or
• the report is complete and has been submitted into the DoEL’s EE system.

The report is a public document and a designated employer must retain a copy of it for five years after it has been submitted to the DoEL.

What about the income differential statement?

Designated employers are still required to submit an income differential statement alongside their section 21 report. The information required for the income differential statement must be reflected on the amended EEA4 form.

While the income differential statement is to be submitted to the National Minimum Wage Commission, practically speaking, the EE4 form is to be submitted simultaneously with the EEA2 form to the DoEL using the online system (or by hand). Unlike the EEA2 form, however, the income differential statement is not a public document.

Compliance certificate

Once a designated employer has submitted its section 21 report, it will then be able to request a certificate of compliance in terms of section 53 of the EEA.

Written by Talita Laubscher and Melissa Cogger, Partners and Chloë Loubser, Knowledge and Learning Lawyer, Bowmans South Africa