Employment and Benefits partner based in Johannesburg, Talita Laubscher, presented a paper at the Labour Law Colloquium hosted by the Law Faculty of the University of Stellenbosch on 3 and 4 October 2024.
Her paper focused on the meaning of the phrase ‘any other arbitrary ground’ as contained in section 6(1) of the Employment Equity Act (EEA) as interpreted by the Labour Appeal Court and Labour Court since 2014.
It took ten years, but the debate is settled: ‘any other arbitrary ground’ under the EEA is afforded a narrow interpretation. She believes that this is correct – the wide approach trivialises discrimination and unnecessarily raises suspicion about valid forms of differentiation.
The ground must be identified, and this ground must share the characteristics of the listed grounds. This is the case where the ground affects or has the potential to affect the inherent human dignity of a person in a comparably serious manner as the listed grounds. These are personal characteristics, unique to the intimate dimensions of people as human beings.
Grounds that do not share these characteristics are apparently neutral grounds. They will not support findings of direct discrimination, but they may underlie claims for unfair indirect discrimination. Here the evidence is critical – it must be shown that the apparently neutral ground disproportionately affects members of a protected group. Assumptions and stereotypes do not help.
Collective agreements are powerful tools to regulate industrial relations and terms and conditions of employment. They are no defence to discrimination on the listed grounds or arbitrary grounds properly construed. But they may justify differential treatment where the differentiating ground is not a prohibited ground; and they may justify differential treatment where the complainants and the comparators do not perform the same or similar work, or work of equal value.
Lastly, workplace rules that infringe employees’ Constitutional rights, especially the right to privacy and human dignity, may be open to challenge. Overbroad, blanket rules without due regard for the individual circumstances and rights of workers expose employers to risk.
