Contrast concepts of unfair discrimination and differentiation in employment law in South Africa especially considering Constitution and ILO Convention 111

Unfair Discrimination versus Differentiation in South African Employment Law: A Constitutional and International Perspective

In South African employment law, the concepts of unfair discrimination and differentiation are critical to understanding how equality and fairness are enforced in the workplace. These concepts

  • are rooted in the Constitution of the Republic of South Africa, 1996, given effect through national legislation like the Employment Equity Act 55 of 1998 (EEA), and
  • further guided by international instruments such as ILO Convention 111.

While both terms involve treating people differently, only one—so-called ‘unfair discrimination’—is inherently prohibited by law.

Understanding Differentiation

Differentiation refers to distinctions or unequal treatment based on objective or neutral criteria, such as skills, qualifications, experience, or performance. It is not inherently unlawful.

For example, if an employer pays two employees different salaries based on their level of experience, this would be differentiation—but not ‘unfair discrimination’.

As established in Prinsloo v Van der Linde, the Constitutional Court held that differentiation is not unconstitutional unless it is

  • arbitrary or irrational and
  • fails to serve a legitimate purpose.

This principle is further clarified in Ntai v South African Breweries Ltd, where employees who had prior disciplinary records were denied promotions. The Labour Court ruled that this constituted legitimate differentiation, not ‘unfair discrimination’, as the employer relied on performance-related factors, not any of the prohibited grounds listed in the EEA or Constitution.

Defining ‘Unfair Discrimination’

In contrast, ‘unfair discrimination’ occurs when differentiation

  • is based on certain prohibited grounds—such as race, gender, sex, pregnancy, religion, age, disability, or ethnic origin—and
  • when it impairs human dignity or
  • perpetuates systemic disadvantage.

Section 9(3) of the Constitution expressly prohibits ‘unfair discrimination’, and this is echoed in Section 6(1) of the EEA.

A landmark decision in this area is Harksen v Lane NO, where the Constitutional Court developed a three-part test to distinguish permissible differentiation from unfair discrimination.

The test asks:

    • (1) whether the differentiation amounts to discrimination,
    • (2) whether it is on a listed or analogous ground, and
    • (3) whether it is unfair.

If the conduct meets all three criteria, it is unconstitutional unless justifiable under Section 36 (the limitation clause).

The case of MEC for Education: KwaZulu-Natal v Pillay offers a practical employment-related example. A school’s refusal to allow a Hindu pupil to wear a nose stud for cultural and religious reasons was held to be unfair discrimination. Although not in a workplace setting, the principles apply equally to employment: denying someone an opportunity or benefit on religious or cultural grounds may impair their dignity and amount to unfair discrimination.

The Role of the Employment Equity Act

The EEA builds on the Constitution by prohibiting unfair discrimination in employment and promoting affirmative action. Importantly, it does not outlaw all forms of differentiation—only those that are unfair and based on listed or analogous grounds. The burden of proof provisions in Section 11 of the EEA further refine the legal approach. If an employee alleges discrimination based on a listed ground, unfairness is presumed unless the employer proves otherwise.

In UNISA v Reynhardt, the Labour Appeal Court confirmed that affirmative action does not amount to unfair discrimination. Here, the appointment of a black candidate over a white applicant was justified as a measure to redress historical disadvantage. This aligns with both the EEA and the Constitution’s Section 9(2), which allows for positive measures to advance equality.

Guidance from ILO Convention 111

South Africa is a signatory to ILO Convention 111, which defines discrimination as

“any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin”

that impairs

    • equality of opportunity or
    • treatment in employment.

While it allows for measures to promote equality, it prohibits any policy or practice that entrenches systemic inequality.

Convention 111 strengthens the interpretation of South Africa’s domestic anti-discrimination framework by reinforcing the need to treat dignity and substantive equality as core values in employment relations.

Courts frequently refer to international standards like this Convention when interpreting constitutional and statutory obligations, adding weight to the prohibition of unfair discrimination.

Conclusion

In sum, differentiation is a neutral and often necessary part of employment practices, provided it is rational and linked to legitimate objectives.

In contrast, unfair discrimination targets certain personal characteristics in a way that perpetuates inequality or undermines dignity.

South African law—guided by the

    • Constitution,
    • EEA, and
    • ILO Convention 111

prohibits such conduct and obliges employers to ensure equitable, justifiable treatment of all employees.

Case law such as Harksen v Lane, Pillay, Ntai, and UNISA v Reynhardt illustrates the courts’ careful balancing of

    • equality,
    • fairness, and
    • legitimate differentiation

in protecting workers’ rights in a democratic society.

Further clarification

In South African employment law, the concepts of unfair discrimination and differentiation are related but distinct. Understanding the difference is important in assessing whether conduct in the workplace is lawful or unconstitutional. Here’s a clear contrast, particularly in light of the Constitution of South Africa and ILO Convention 111:
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1. Differentiation: Neutral or Justifiable Distinction

Definition:
Differentiation occurs when employees or job applicants are treated differently based on criteria that are not necessarily unfair or unlawful.

Examples:
• Promoting someone because they have more experience.
• Paying different salaries based on qualifications or job responsibilities.

Legality:
• Not all differentiation is discrimination.
• Section 9(1) of the Constitution guarantees the right to equality, but section 9(3) prohibits ‘unfair discrimination’—not all differentiation.
• Differentiation is permissible if it is rational and justifiable (e.g., based on performance, skills, or operational requirements).
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2. Unfair Discrimination: Constitutionally and Statutorily Prohibited

Definition:
‘Unfair discrimination’ refers to treating people differently based on certain protected grounds in a way that impairs their dignity or rights.

Protected grounds include:

• Race
• Gender
• Sex
• Pregnancy
• Marital status
• Ethnic or social origin
• Colour
• Sexual orientation
• Age
• Disability
• Religion
• Conscience
• Belief
• Culture
• Language
• Birth

(per Section 9(3) of the Constitution and Section 6 of the Employment Equity Act (EEA))

Examples:
• Refusing to hire someone because of their race.
• Paying a woman less than a man for the same work, because of her gender.

Key tests:
• Is there differentiation?
• Is it based on a prohibited ground?
• Is it unfair? (This involves looking at the context and impact, especially on human dignity.)

Burden of proof (in EEA cases):
• Once discrimination is shown on a listed ground, it is presumed to be unfair unless the employer proves otherwise (Section 11(1) of the EEA).
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3. Role of the Constitution and the Employment Equity Act (EEA)

• The Constitution (Section 9) is the supreme law and provides the framework for equality and anti-discrimination.
• The Employment Equity Act (1998) gives detailed effect to this in the workplace, targeting

    • ‘unfair discrimination’ and
    • promoting affirmative action.

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4. ILO Convention 111 (Discrimination in Employment and Occupation)

Key points:
• Prohibits discrimination in employment based on race, colour, sex, religion, political opinion, national extraction, and social origin.
• South Africa ratified this Convention, and it forms part of the international legal context that influences local interpretation of anti-discrimination laws.

Impact in South African law:
• South African courts and labour forums are obliged to consider ILO standards, including Convention 111, when interpreting rights under the Constitution and EEA.
• This international norm strengthens the commitment to equality, dignity, and non-discrimination.
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5. Summary Table: Differentiation vs. ‘Unfair Discrimination’

Aspect

  • Differentiation
  • ‘Unfair Discrimination’

Definition

  • Lawful or neutral distinction
  • Harmful or prohibited distinction

Basis

  • Performance,
  • qualifications,
  • experience
  • Race,
  • gender,
  • disability, etc.

Legality

  • Permissible if rational and fair
  • Prohibited if based on listed or analogous grounds and unfair

Law applicable

  • Section 9(1) of Constitution; general principles
  • Section 9(3) of Constitution; EEA; ILO 111

Burden of proof

  • On complainant to show irrationality
  • On employer to justify if prima facie discrimination is shown

Here are key South African case law examples that clearly illustrate the difference between differentiation and unfair discrimination, especially in employment contexts:

1. Harksen v Lane NO (1998 (1) SA 300 (CC))

Significance:
This Constitutional Court case provides the foundational test to distinguish permissible differentiation from ‘unfair discrimination’.
Key points:
• Introduced a three-stage test:
1. Does the law or action differentiate between people or groups?
2. Is the differentiation arbitrary or irrational? If so, it violates the right to equality (section 9(1)).
3. If it is on a prohibited ground, is it unfair? (Section 9(3))
If so, it is unconstitutional unless justified under the limitations clause (section 36).
Application:
This case helps courts decide whether a workplace policy or rule, even if treating people differently, amounts to ‘unfair discrimination’ or justifiable differentiation.
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2. Prinsloo v Van der Linde (1997 (3) SA 1012 (CC))

Significance:
This case elaborates on rationality in differentiation.
Key points:
• Not all differentiation is ‘unfair discrimination’.
• The state (or an employer) may differentiate as long as the differentiation is rationally connected to a legitimate purpose.
Application to employment:
For example, offering different benefits to ‘permanent’ and temporary employees might be rational (e.g., based on employment terms), not ‘unfair discrimination’.
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3. City Council of Pretoria v Walker (1998 (2) SA 363 (CC))

Significance:
Distinction between ‘unfair discrimination’ and mere differentiation in service provision.
Key point:
• Discriminatory conduct is unfair when it impairs dignity or exacerbates historical disadvantage.
Application to employment:
If an employer applies different rules in different branches but with no bias, it may be differentiation. But if the rules systematically disadvantage black employees, it may be ‘unfair discrimination’.
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4. MEC for Education: Kwazulu-Natal v Pillay (2008 (1) SA 474 (CC))

Facts:
A school refused a Hindu pupil the right to wear a nose stud for religious/cultural reasons.
Key legal issue:
Was this ‘unfair discrimination’ based on culture or religion?
Court held:
Yes, because it interfered with her right to identity and dignity based on cultural and religious grounds.
Application to employment:
If an employer bans head coverings or traditional attire without justification, it may be ‘unfair discrimination’ under the Employment Equity Act, echoing ILO Convention 111.
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5. Ntai v South African Breweries Ltd [2001] 2 BLLR 186; (2001) ILJ 214 (LC)

Facts:
Employees were denied promotion based on past disciplinary records. They claimed ‘unfair discrimination’.
Court held:
This was differentiation, not ‘unfair discrimination’, because the distinction was based on legitimate performance-related criteria—not on any prohibited ground like race or gender.
Application:
Employers may differentiate on rational, objective grounds like conduct, performance, or qualifications—this does not amount to discrimination.
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6. UNISA v Reynhardt [2010] 12 BLLR 1272; (2010) ILJ 2368 (LAC)
Facts:
A white employee claimed he was unfairly discriminated against when a black candidate was appointed for affirmative action reasons.
Court held:
The employer was implementing affirmative action as required by the EEA, in line with the Constitution and ILO Convention 111, which allows positive measures to redress disadvantage.
Key point:
Not all racial preferences are unfair—affirmative action may involve differentiation that is constitutionally valid and not ‘unfair discrimination’.
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Summary Table of Cases

Case Issue Outcome Key Takeaway

  • Harksen v Lane Equality test Differentiation ≠ unfairness Use 3-part test to assess fairness
  • Prinsloo v Van der Linde Rationality Allowed Rational distinctions are lawful
  • Pillay v MEC Culture/religion ‘Unfair discrimination’ Denial of cultural expression = unfair
  • Ntai v SAB Disciplinary records Allowed Justified differentiation
  • UNISA v Reynhardt Affirmative action Not unfair EEA allows redress-based measures