In our previous two articles we looked at the changes brought by the Employment Equity Amendment Act and how employers can navigate them. In this, the final article of the series, we look at legitimate and unavoidable circumstances that prevent the full attainment of the prescribed sectoral targets within the specific reporting period.

The amended Employment Equity Act recognises that, despite a designated employer's genuine commitment and diligent efforts, such circumstances may arise. To accommodate those situations, the legislation makes specific provision to allow for justifiable reasons for non-achievement, which importantly, should not mean non-compliance.

The provision of acceptable justifications also plays a significant role in preventing penalties that might otherwise be levied for non-compliance with the numerical targets. The inclusion of the "justifiable reasons" clause within the Act demonstrates a recognition that a purely rigid and inflexible application of pre-determined numerical targets may not always be equitable or practically achievable in every context. It therefore allows for a more nuanced and holistic assessment of an employer's overall efforts and progress towards meaningful transformation within their specific operational environment.

Verifiable evidence of adverse economic conditions that have necessitated the implementation of company-wide hiring freezes, or other similar measures that may have affected the employer's ability to make progress towards their Employment Equity targets, would also be pertinent. It is therefore essential that employers keep meticulous and thorough records of all their human resource processes, including recruitment activities, employee training and skills development initiatives, and any other relevant business or economic factors that may have influenced their ability to meet the prescribed Employment Equity targets. Robust and readily available documentation will be crucial for effectively substantiating any claims of justifiable non-compliance to the Department of Labour.

To be officially considered justifiable, considering the reasons applicable as received from the Department of Employment & Labour, it is imperative that the employer provides clear, objective, and documented evidence in support of any reason cited for not fully meeting the established sectoral targets. Vague or anecdotal assertions, without concrete supporting documentation, are unlikely to be deemed acceptable by the Department of Labour. Examples of evidence that would likely be considered acceptable, could include comprehensive and detailed records of recruitment efforts undertaken by the employer, clearly demonstrating a genuine lack of suitably qualified candidates from designated groups despite extensive and proactive outreach initiatives.

Similarly, evidence of specific and demonstrable skills shortages within the sector in which the employer operates, disproportionately affecting the availability of candidates from designated groups, would be relevant. Documented instances of significant business restructuring, such as mergers, acquisitions, or disposals of business units, that have had a direct and unavoidable impact on the employer's workforce demographics, could also be considered.

The amended Employment Equity Act is not intended to compel employers to implement drastic or disruptive measures, such as the immediate retrenchment of existing employees, to achieve the mandated sectoral targets. Instead, the primary focus should be on fair and equitable recruitment, hiring, and promotion practices throughout the entire five-year implementation period.

The overarching vision of the legislation is a gradual but sustainable process of workforce transformation; one that occurs through natural employee attrition, the strategic and equitable acquisition of new talent, and the proactive creation of genuinely equal opportunities for all employees within the organisation. Employers should therefore concentrate their efforts on building diverse talent pipelines, and on fostering an inclusive and supportive workplace culture that actively attracts and retains individuals from all designated groups.

The emphasis on a five-year timeframe for achieving the sectoral targets, coupled with the acceptance of justifiable reasons for any temporary non-achievement, indicates that the legislation promotes a long-term and evolutionary approach to Employment Equity rather than demanding immediate and potentially destabilising changes to an organisation's workforce.

It is important that we reiterate that the Employment Equity Act explicitly prohibits the implementation of any affirmative action measures that would create absolute barriers to either the prospective or the continued employment or career advancement of individuals who do not belong to designated groups. This fundamental principle serves as a crucial safeguard to ensure genuine equality of opportunity and achieving equitable representation for historically disadvantaged groups, and not unfairly excluding, or creating disadvantages for, any other segment of the South African population.

The core intention of the Act is to level the playing field within the labour market and to effectively address the historical imbalances. It is not intended to create new forms of discrimination or to unfairly penalise individuals based on their demographic group. Employers should therefore remain steadfast in their commitment to ensuring that all hiring and promotion decisions are fundamentally based on the principles of merit, individual qualifications, and demonstrated skills, while simultaneously and actively increasing the representation of individuals from designated groups in those areas where they are currently underrepresented within their workforce.

Employment Equity is ultimately about fostering a truly inclusive and fair working environment for all individuals within the workplace, and the amended Act ensures that the pursuit of a more demographically representative workforce does not inadvertently exclude or unfairly disadvantage any particular group of people.

Written by Kyle Wesemann, Transformations Exec at Labournet