The Employment Equity (EE) Amendment Act was gazetted in January this year but hasn’t yet come into force. It is, however, only a matter of time until this happens. One of the big changes in the act is the extent to which employers are able to ‘excuse’ not transforming.

 Section 42, which deals with compliance assessment, has been changed dramatically by the deletion of most of the factors that could, up to now, have been considered to determine if an employer is complying with the EE act.

Assessing compliance is also becoming stricter with the replacement of the broad concept ‘reasonable efforts made’ with the more defined consideration of ‘reasonable steps taken’ and the additional factor of if steps were taken to train suitably qualified employees from designated groups.

The matter of demographics is also addressed, making provision for regulations to determine the circumstances in which the national or regional economically active population should be considered in determining compliance. The draft regulation on this has recently been withdrawn and would’ve required employers who employ:

  • 150 or more people to use the national demographics for the upper three levels of the workforce, and
  • Less than 150 to use the national demographics for the upper two levels of the workforce.

These amendments will make justifying not complying much harder as they place a positive obligation on employers to take concrete steps towards transforming.