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This case law proves you NEED to be careful when it comes to affirmative action and recruitment

by , 23 May 2014
You can't discriminate applicants when your recruit. The only exception to the rule is if you want to promote affirmative action policies during recruitment.

But, even in this instance, you have to tread carefully.

In fact, in the case of Walters vs Transitional Local Council of Port Elizabeth &Another 2000, 21 ILJ 2723, the Labour Court found that the affirmative action exception doesn't apply in each and every case.

That means you can't apply a blanket policy. You must judge each case on its merits. If you don't, it's unfair discrimination.

Confused?

Let's take a look at a case and see why you need to be careful when you implement affirmative action policies during recruitment.

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The A-Z of legal recruitment
 

  • Did you know there are 11 legal requirements for recruitment?
  • Do you know how the Employment Equity Act affects your job advertisement?
  • Do you know what checks you can legally conduct on an applicant?
  • Are you sure your employment contract includes the 16 clauses the law says you must have?


If you don't have all of these aspects correct, you'll be on the wrong side of the law when it comes to your recruitment process.

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Don't cross the line when you implement affirmative action policies during your recruitment

The Labour Law for Managers Loose Leaf Service explains what happened in the affirmative action policies case of Walters vs Transitional Local Council of Port Elizabeth & Another 2000, 21 ILJ 2723.

  • In the Walters case, the job applicant, a white female with the necessary experience short-listed for a position of Principal Personnel Officer with another applicant, a black male.
  • The selection committee of the Transitional Local Council made a recommendation for the black applicant to get the job.
  • The white applicant didn't get the job. She brought a case of unfair discrimination to the Labour Court.

What did the court find?

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The Labour Court ruled against the employer

It said the Council didn't have a proper affirmative action plan.

And this means it had no right to discriminate the white applicant.

The Labour Court said the provision in the Employment Equity Act (EEA) that allows you to discriminate only applies to employers who have a proper affirmative action plan in place and who are properly complying with it.

There you have it. Be cautious when you implement affirmative action policies during recruitment. It's the only way to avoid unfair discrimination claims.



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