Unfair Discrimination: Test for unfair discrimination

Discrimination is defined as the unjust or prejudicial treatment of different categories of people, especially on the grounds of race, age or sex. 

Section 6(1) of the Employment Equity Act (“EEA”) provides that: 

“(1)  No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including 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, birth or on any other arbitrary ground.”

Section 11(1) the EEA provides that: 

“(1) If unfair discrimination is alleged on a ground listed in section 6(1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination

  • Did not take place as alleged; or 
  • Is rational and not unfair or is otherwise justifiable. 

There is a two-stage analysis to determine whether there is a differentiation which amounts to unfair discrimination. This two-stage enquiry was set out in Harksen v Lane NO & Other which provides for the following: 

“(i)     Firstly, does the differentiation amount to ‘discrimination’? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. 

(ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation”. 

In a recent case of Mahlangu v SAMANCOR Chrome Ltd (Eastern Chrome Mines) (JA117/2018) [2020] ZALAC 14 the Labour Appeal Court found that SAMANCOR discriminated against an employee on the grounds of pregnancy. 

The facts of the case are as follows: 

The employee was employed as an underground heavy-duty truck driver. She fell pregnant for the second time in a three-year period and she informed her employer of her pregnancy on 28 May 2014. The employer’s policy stated that an employee who gets pregnant may be offered suitable alternative employment during pregnancy and if there is no suitable alternative work, the employee will be sent on unpaid leave. The employee’s maternity leave was to commence on 29 November 2014 however the employee was placed on unpaid leave from 4 June 2014 to 28 November 2014 due to the employer not being able to find alternate work for the employee. The employee took issue that she was the only pregnant employee who was not offered alternative employment before her maternity leave commenced. A further employee reported her pregnancy on 2 June 2014 (after the employee had reported her pregnancy) and was placed into an alternative position. 

The employee referred an unfair labour practice dispute to the CCMA and the arbitrator found that the employee was unfairly treated by being put on unpaid because she fell pregnant twice in three years. The arbitrator further found that the employer failed to show that the different treatment on a listed ground was rational and not unfair, or otherwise justifiable. The employer applied for the review of the award and the Labour Court upheld the arbitration award. The employee then applied for leave to appeal in the Labour Appeal Court (“LAC”) which leave was granted. 

The LAC found that the employer differentiated between the employee and other employees on the basis of her pregnancy for a second occasion in a three-year cycle. Further the employer failed to show that the discrimination was rational and not unfair or was otherwise unjustifiable. The employer was ordered to pay the employee the salary due to her for her for the period from 4 June 2014 to 28 November 2014. 

It is therefore necessary to follow the two-stage process when dealing with discrimination matters. 

NB: This article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.

For more information please contact Allardyce & Partners on 011 234 2125 or leigh@www.allardyce.co.za

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