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Article 14/2026

From the previous articles dealing with employment equity, it is evident that a designated employer should, amongst other things (in no sequence of importance):

  • identify the correct sector within which it operates, so that it can align itself with the sectoral targets
  • ensure that its EEA9 classification is correct
  • choose the right EAP
  • determine whether a person is a suitably qualified person – firstly, same providing a ground for deviation from an employment equity plan and, secondly, same providing a justifiable reasonable ground for non-compliance with targets.

But, how should a designated employer deal with its employment equity targets from 2025 until the end of 2030?

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A 5-year employment equity plan is required, spanning from 1 September 2025 to 31 August 2030 and, in this plan, the following baseline year and measurement years can be identified:

End of 2025

  • this is the baseline year
  • no compliance certificate will be issued if the employer is guilty of unfair discrimination from 1 January 2025
  • the employer sets its own targets and there is the duty to make reasonable progress

End of 2026

  • this is measurement year 1
  • no certificate of compliance is issued if the employer is guilty of unfair discrimination from 1 January 2025, or there is non-achievement with the targets without justifiable reason
  • the employer sets own targets and there is a duty to make reasonable progress

End of 2027

  • this is measurement year 2
  • no compliance certificate will be issued if the employer is guilty of unfair discrimination from 1 January 2025, or there is non-achievement with the employment equity targets without any justifiable reason
  • the employer sets its own targets and there is a duty to make reasonable progress

End of 2028

  • this is measurement year 3
  • no compliance certificate will be issued if the employer is guilty of unfair discrimination from 1 January 2025, or there is non-achievement with the targets without justifiable reason
  • the employer sets its own targets and there is a duty to make reasonable progress

End of 2029

  • this is measurement year 4
  • no compliance certificate is issued if the employer is guilty of unfair discrimination from 1 January 2025, or there is non-achievement with the targets without justifiable reason
  • the employer sets its own targets and there is a duty to make reasonable progress

End of 2030

  • this is measurement year 5
  • compulsory sectoral targets are applicable
  • no compliance certificate will be issued if the employer is found guilty of unfair discrimination from 1 January 2025, or there is non-achievement of these sectoral targets without justifiable reason
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?