Skip to main content

Article 23/2025

The test for discrimination is well-established and set out in Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (Harksen).

In Mbana v Shepstone & Wylie 2015 (6) BCLR 693 (CC) (Mbana), in considering Harksen, the constitutional court said that ‘[a]part from permitting differentiation on the basis of the internal requirements of a job … the test for unfair discrimination in the context of labour law is comparable to that laid down by the constitutional court in Harksen’.

What does this test entail so applicable to automatically unfair dismissals (ito s187(1)(f) of the LRA) and unfair discrimination (ito s6(1) of the EEA), as more recently applied by the labour appeal court in Enever v Barloworld Equipment South Africa (a division of Barloworld South Africa) (Pty) Ltd (2024) 35 SALLR 115 (LAC)?

_____________________________________

STEP 1

Did the act or omission differentiate between people or categories of people?

  • if there is no differentiation, there is also no discrimination
  • however, if there is differentiation, then the next step entails answering the question as to whether or not such differentiation amounts to discrimination

STEP 2

Does the differentiation amount to discrimination?

  • if the differentiation is on a listed ground, then discrimination has been established
  • if the differentiation is on a non-listed ground, then the claimant must prove that such differentiation is based on attributes and characteristics with the potential to impair human dignity, or affect humans adversely in a comparably serious manner to listed grounds
  • if the claimant cannot prove that the ground of differentiation has the characteristic with the potential to impair human dignity, or adversely affect human beings in a comparably serious manner to the listed grounds, then no discrimination has been established – on the other hand, if the requirements of the impairment of human dignity, or to affect adversely in a comparably serious manner to a listed ground, have been complied with, then what remains to be asked is whether or not such discrimination amounts to unfair discrimination

STEP 3

Is the discrimination unfair?

  • if the discrimination is on a listed ground, the presumption is that it is unfair unless the employer can prove fairness
  • if the discrimination is on a non-listed ground, unfairness must be established by the complainant – the test entails a determination of the impact of the discrimination on the complainant and others in similar positions
  • if there is compliance with the aforesaid test, unfair discrimination has been established – if there is non-compliance with the aforesaid test, the discrimination is fair
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)?