Planning Covid19 work rosters - understand your risks

covid19 discrimination Apr 30, 2020

The question was bound to come up: on what basis can South African employers include or exclude staff when reopening business and starting (partial or phased-in) operations?

Can staff who use public transport to get to work be legitimately regarded as posing or being subjected to a greater health risk than their colleagues who might have their own transport - and be excluded from call-backs on that basis? 

On the face of it, it might seem like a simple enough question with only health concerns in mind. However, there is great potential for decisions that are arbitrary, subjective and based on assumptions that might not be able to be objectively substantiated. Taking decisions about the presumed health vulnerability of employees without relevant medical information, is equally risky. Any selection or differential treatment will have to be defensible in terms of solid scientific facts or a neutral operational rationale - since this situation can very easily turn into challenges of unfair discrimination. 

In South Africa, the reality is that the great majority of employees who use public transport, happens to be black. Socio-economic background also plays a role. Medical conditions are meant to be private. Indirect unfair discrimination is therefore a real possibility when selection comes into play.

The Employment Equity Act prohibits:

  • unfair
  • discrimination
  • against any employee
  • in any employment policy or practice
  • that is directly or indirectly
  • based on any one or more of the grounds listed in section 6(1) “......, 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.”

Bear in mind, however, that the Act only prohibits violations of the right to equality. Not all differentiations automatically constitute such a violation. So it must be proved that different treatment of employees is of a type that is in fact prohibited by the EEAct - i.e. that (1) it is in fact discrimination, and also (2) that such discrimination is unfair:

  • Differentiation only becomes discrimination once a differentiation takes place for an unacceptable reason – i.e. those reasons referred to in section 6(1) of the EEA.
  • If claiming discrimination on an ‘arbitrary ground’, it has to be shown that the dignitas or the right of equality of the complainant as a person, his/her personal attributes and characteristics, have been impaired or prejudiced. ‘“Arbitrary” ........ is however not a synonym for 'irrationality' or even ‘unlawfulness’.  
  • Discrimination has to exist to begin with before rationality is considered - irrationality in itself is not enough: the irrationality of discrimination is required.

If discrimination is proved, it will therefore still not be unfair (and prohibited) if the employer’s conduct or application is rational, fair or otherwise justifiable. So, for example, is the inherent requirements of the job a valid defence against such a claim. Or the employer may be able to provide statistics, scientific data, medical confirmation or other objective criteria for different treatment of employees.

In the absence of this, however, employers should be very cautious about using selection criteria that could be seen as arbitrary, presumptuous or constituting (in)direct unfair discrimination in terms of the EEA. Also remember that a lack of intention to discriminate is not a defence to a claim of unfair discrimination. 

 

© Judith Griessel 

www.griesselconsulting.co.za

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