SOUTH AFRICA: CONSIDERATIONS FOR DESIGNATED EMPLOYERS WHEN CONDUCTING THEIR WORKPLACE ANALYSIS
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Talita Laubscher and Melissa Cogger | 5 May 2025
To ensure compliance with their affirmative action obligations under the Employment Equity Act, 1998 (EEA) and the newly enacted Employment Equity Regulations, 2025 (General Administrative EE Regulations), designated employers must first conduct a workplace analysis as required by section 19 of the EEA.
In terms of section 19, a designated employer is required to collect information relating to its employment policies, practices, procedures and the working environment in order to identify employment barriers that adversely affect people from designated groups. What this entails is more fully explained in the explanatory paragraphs contained in the EEA12 form in the General Administrative EE Regulations, which largely reflect what is also set out in the Code of Good Practice on the Preparation, Implementation and Monitoring of the Employment Equity Plan (Code), which Code remains applicable.
According to the EEA12 form, barriers may contribute to the under-representation of employees from designated groups, or the lack of affirmation of diversity in the workplace. The analysis is also intended to identify practices or factors that positively promote employment equity and diversity in the workplace, including reasonable accommodation.
The analysis includes a ‘critical examination’ of, among other things: recruitment, selection, pre-employment testing, promotion, retention, succession planning, training opportunities, and so on. A full list of policies, practices and conditions that are required to form part of the analysis are set out in the EEA12 form, however, this is not a closed list, and the Code provides that further columns and rows may be added by a designated employer.
A workforce profile analysis
This analysis must include a workforce profile in order to determine the degree of under-representation of people from designated groups in the various occupational levels in the workplace, as compared to the economically active population (EAP) and the five-year sector targets.
Which EAP to use
The EEA8 form in the General Administrative EE Regulations, read with the EEA12 form, provides a guide for designated employers when it comes to the applicable EAP. According to these forms, employers are required to refer to the Statistics South Africa Quarterly Labour Force Survey of the third quarter when determining the EAP and conducting the analysis. This information can also be found in the Commission for Employment Equity Annual Report.
If the employer operates in more than one province, it must consider the nature and geographical area of its operations and adopt either (i) the national EAP, (ii) the provincial EAP for each of the provinces in which it operates, or (iii) the provincial EAP of the province where the largest part of its operations is conducted.
Once the applicable EAP has been chosen, it must be used when preparing the employment equity plan (EE Plan) and reporting to the Department of Employment and Labour in terms of section 21, and it must be utilised for the full duration of the EE Plan. That said, if the national EAP or the provincial EAP in which the largest part of the operations is conducted is used, the employer must nevertheless have regard to the variations between the EAPs of different provinces when setting numerical targets.
In addition to the EAP, the employer must use the five-year sector targets when conducting the analysis to determine the degree of under-representation.
How to record the analysis
Employers will need to use the updated EEA1 form to collect the information necessary for the workforce profile, i.e., information relating to an employee’s race, gender, disability status and whether they are a foreign national. This form will need to be completed by all employees (both permanent and temporary) and assists the employer in determining which employees are from ‘designated groups’ for purposes of the EEA. The contents of this form must remain confidential and be used only for purposes of compliance with an employer’s obligations under the EEA. Should employees refuse to complete the form, designated employers can rely on reliable historical and existing data, noting that persons with disabilities have a right not to declare their disabilities.
Among other changes that have been made to the form, the EEA1 form now reflects the expanded definition of ‘people with disabilities’, being ‘people who have a long-term or recurring physical, mental, intellectual or sensory impairment, which in interaction with various barriers, may substantially limit their prospects of entry into, or advancement, in employment’. It also provides space for people with disabilities to indicate whether they require reasonable accommodation and if so, to specify what that accommodation might look like.
The data from these EEA1 forms will then need to be reflected on the EEA12 form, where employers will capture the workforce profile figures and the over-representation or under-representation of particular groups (designated or non-designated) in each occupational level, with reference to the applicable EAP and sector targets. Completion of the EEA12 form is required in order to comply with section 19 of the EEA.
The EEA12 form will also be used to capture the information relating to any barriers identified in the employer’s policies, practices or procedures and the affirmative action measures that are proposed to respond to such barriers. These will inform the non-numerical goals outlined in the EE Plan.
Timing
For purposes of the workplace profile, a snapshot of the employee distribution in the various occupational levels in terms of race, gender and disability must be taken on a particular date. The EEA12 form contemplates that this date will be the last day of a month.
Whilst the General Administrative EE Regulations do not prescribe the month in which the snapshot should be taken, the timelines are tight, considering that all designated employers’ EE Plans will need to be finalised by 1 September 2025 (being the prescribed start date for all EE Plans, in line with the five-year sector targets), and that employers are required to consult on both the analysis and EE Plan. Given these timeframes, it would be advisable for employers to use 31 May 2025 as the snapshot date.
If this date is used, the EEA1 forms could then be collected during the month of May. Employers would then prepare the draft barrier analysis by early June 2025 and use the month of June to consult with employee representatives on the contents of the analysis. The analysis would then be finalised at the end of June 2025.
In parallel, the employer should prepare its new EE plan and have a draft ready for consultation by early July 2025.
Written by Talita Laubscher and Melissa Cogger, Partners and Chloë Loubser, Knowledge and Learning Lawyer, Bowmans South Africa
‘Disclaimer - The views and opinions expressed in this article are those of the author(s) and not necessarily those of the BEE CHAMBER’.