What is the test for unfair discrimination formulated in Harksen v Lane and consistently applied subsequently by the various courts, including, recently, Premier FMCG (Pty) Ltd t/a Blue Ribbon Bakery v FAWU (2022) 33 SALLR 277 (LC); (2022) 43 ILJ 1584 (LC)?
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Step 1
- Step 1 entails answering the question as to whether the act or omission differentiates between people or categories of people – a negative answer means that no discrimination has taken place and a positive answer permits the investigation to move to step 2.
Step 2
- This step entails answering the question as to whether or not the differentiation amounts to discrimination.
- If the differentiation is on a listed ground, discrimination has been established.
- On the other hand, if the discrimination is on a non-listed ground, such ground must show attributes or characteristics with the potential to impair human dignity or affect human beings adversely in a comparably serious manner – if same is established, discrimination exists and, if same is not established, then no discrimination exists.
Step 3
- This step entails answering the question as to whether or not the discrimination is unfair.
- If the discrimination is on a listed ground, unfairness is presumed – unless the employer proves fairness.
- If the discrimination is on a non-listed ground, unfairness is to be established – the test is the impact of the discrimination on the complainant and others in a similar position (if there is compliance with the test, then unfair discrimination has been established, but, on the other hand, if there is non-compliance with the test, fair discrimination exists).
