In the case of Solidarity v Minister of Safety and Security & 3 others (handed down on 26 January 2016), the Labour Court (LC) made important findings regarding the validity of employment equity plans.
It made findings in relation to the difference between numerical goals and quotas. It also made findings regarding the use of national versus regional demographics to determine whether an employment equity plan promoted the achievement of equality.
The South African Police Service employment equity plan (SAPS plan) for the period 2010 – 2014 consisted of numerical targets in each of the four categories of personnel. The SAPS plan set out two types of targets for each racial and gender category, namely ‘ideal’ and ‘realistic’ percentages of the workforce. The SAPS plan failed to set out how the ‘realistic’ percentage of the workforce was reached but the Minister of Safety and Security indicated that reliance was placed on national census figures.
Solidarity challenged the SAPS plan on the basis that the plan failed to differentiate between national and regional demographics and that it took into account the national census population and not the regional economically active population. Furthermore, the plan was attacked on the basis that, because of the failure to take into account the regional economically active population, the numerical targets amounted to quotas.
The LC found that it was legitimate to rely on national demographics in terms of the Employment Equity Act (EEA) and the Constitution but that it was not sufficient to simply rely on national census figures of the general population for the purposes of the EEA. The LC found that employers must ensure that their workforces are both nationally and regionally representative.
The LC held that quotas referred to numerical goals that the employer was required to adhere to ‘come what may’. However, where the employer’s employment equity plan made provision for numerical goals which did not pose an absolute bar to the application of the goals, such an employment equity plan would be considered to be fair. The SAPS plan did not provide for circumstances in which deviation of its employment equity plan would be acceptable and, as such, it failed to promote the achievement of equality. The numerical targets in the SAPS plan therefore amounted to quotas which were impermissible.
Given that the period of implementation of the plan had passed, the LC granted declaratory relief and held that the issue of the SAPS plan’s implementation would turn on what happened in the case of specific appointments.
This case illustrates the importance of flexibility in achieving the numerical targets contained in an employer’s employment equity plan. An inflexible adherence to numerical targets amounts to a quota system. This is unfair. In addition, in setting the numerical targets, employers are obliged to consider both national and regional demographics of the economically active population in order to promote the achievement of equality.
Kirsten Caddy and Khanyisile Khanyile, Employment practice and services, Cliffe Dekker Hofmeyr.