Talita Laubscher and Melissa Coger | May 5, 2025
To ensure compliance with the Affirmative Litigation Duty under the Employment Equity Act 1998 (EEA) and the newly enacted Employment Equity Regulation 2025 (General Administrative Regulation), designated employers must perform workplace analysis as required by Section 19 of the EEA.
With regard to Section 19, designated employers must gather information about employment policies, practices, procedures and work. environment To identify employment barriers that adversely affect people in designated groups. What this entails is explained more fully in the explanatory paragraphs contained in the EEA12 format of general administrative EE rules.
According to the EEA12 form, barriers may contribute to underrepresentation of employees from designated groups or lack of affirmation of workplace diversity. The analysis is also intended to identify practices or factors that actively promote fairness and diversity in workplace employment, including reasonable accommodation.
The analysis includes, among other things, “critical research”: hiring, selection, and pre-employment. testpromotion, retention, succession plan, training Opportunities etc. A complete list of the policies, practices, and conditions required to form part of the analysis can be found on the EEA12 form, but this is not a closed list and the code provides that the designated employer can add more columns and rows.
Workforce Profile Analysis
This analysis should include workforce profiles to determine the extent of underrepresentation of people from designated groups at different occupational levels in the workplace compared to economically active population (EAP) and 5-year sector goals.
The EEA8 form of the general administrative EE rules read on the EEA12 form provides a guide for designated employers regarding the applicable EAP. According to these forms, employers should refer to the statistics in the South Africa A third quarter quarter workforce survey when determining EAP and conducting analysis. This information is also available in the Employment Equity Equity Annual Report Committee.
If your employer is active in multiple states, its nature and geographical area should be considered. operation We employ (i) the national EAP, (ii) the EAP of the state of each state in which it operates, or (iii) the EAP of the state of the state in which it has the largest portion of it. operation It will be implemented.
Once the applicable EAP is selected, it must be used when preparing an Employment Equity Plan (EE Plan) and reporting to the Ministry of Employment and Labor from the perspective of Section 21, and must be used for the full duration of the EE Plan. However, national or local EAPs are operation It is used to implement. Still, when setting numerical targets, variations between EAPs in different states must be considered.
In addition to EAP, employers must use five-year sector goals when conducting analysis to determine the extent of underestimation.
How to record your analysis
Employers must use the updated EEA1 form to collect information related to the employee's race, gender, disability status, and whether they are foreigners, i.e. information related to the employee's race, disability status, i.e. information. This form is required for all employees (both permanent and temporary) to complete and assists employers in determining employees from the “designated group” for EEA purposes. The contents of this form remain confidential and must be used solely for compliance with the employer's obligations under the EEA. Please note that if an employee refuses to complete the form, the designated employer can rely on reliable historical and existing data, and that persons with disabilities have the right not to declare a disability.
Among other changes to the form, the EEA1 form reflects an expanded definition of “persons with disabilities,” which “is a person with long-term or repeated physical, mental, intellectual, or sensory disorders that may significantly limit the prospects of employment or progress in their interactions with various barriers. It also provides space to show whether people with disabilities need reasonable accommodation and, if so, what accommodation will look like.
Data from these EEA1 forms must be reflected in EEA12 forms where employers refer to employee profile figures and targets of applicable EAP and sectors to specific groups (specified or undesigned) at each occupational level, and capture workforce profile figures and overrepresentation or underrepresentation. Compliance with Section 19 of the EEA requires completion of the EEA12 form.
The EEA12 form is also used to capture information relating to barriers identified in an employer's policies, practices, or procedures, and the proposed affirmative action measures to address such barriers. These inform non-numerical targets outlined in the EE plan.
For the purposes of workplace profiles, snapshots of employee distributions at various occupational levels in terms of race, gender and disability must be taken on a specific date. The EEA12 form considers that this date will be the last day of the month.
The general administrative EE rules do not specify the months to take snapshots, but the timeline will be stricter considering that any employer EE plans designated by September 1, 2025 must finalize the start date for all EE plans. Given these time frames, it is recommended that employers use May 31, 2025 as their snapshot date.
This date allows you to collect EEA1 forms during May. Employers will then prepare a draft barrier analysis by early June 2025 and use June to consult with employee representatives about the content of the analysis. The analysis will then be finalized at the end of June 2025.
In parallel, employers will need to prepare new EE plans and use drafts that are ready for consultation by early July 2025.
Talita Laubscher and Melissa Cogger, Partners and ChloëLoubser, Knowledge and Learning Lawyer, Bowmans South Africa
“Disclaimer – the views and opinions expressed in this article are the views of the author and are not necessarily those of the Bee Room.”
