Hiding behind the veil: On whom does liability for discriminatory practices by recruitment agencies fall

• Citation: (2023) 35 SA Merc LJ 162
• DOI: https://doi.org/10.47348/SAMLJ/v35/i2a3
• Published date: 26 March 2024
• Pages: 162-189
• Author: Rammila, D.
• Date: 26 March 2024

HIDING BEHIND THE VEIL: ON WHOM

DOES LIABILITY FOR DISCRIMINATORY

PRACTICES BY RECRUITMENT AGENCIES

FALL?

DAVY RAMMILA*

Senior Lecturer, University of South Africa

ERNEST MANAMELA

†

Professor, University of South Africa

Abstract

The Employment Equity Act 55 of 1998 (EEA) provides that applicants

for employment are employees for purposes of its unfair discrimination

provisions. The EEA is, however, silent in respect of applicants who

seek employment through recruitment agencies. In this article, we

argue that this silence has the potential to handicap these applicants

and deprive them of the statutory procedure they would have enjoyed

had they otherwise applied directly to employers. We further contend

that the relationship between recruitment agencies and applicants for

employment is not capable of being construed to fall within the

provisions ofs4oftheEEA. We also posit that it would be

unreasonable to expect these applicants to follow an onerous process

under the Promotion of Equality and Prevention of Unfair

Discrimination Act 4 of 2000; this, despite there being a clear

employment nexus informing the foundation and execution of the

juristic act between the respective parties. Instead, we propose that

recruitment agencies are agents in the ordinary sense, that their

engagements with applicants enjoy prior authorisation from the

potential employer, and that any consequences of such engagements

are attributable to the potential employer.

Keywords: applicants for employment, unfair discrimination, recruitment

agency, agency, employment equity

*LLB LLM (cum laude) LLD candidate (UJ).

†

BProc LLB (Unin), LLM LLD (Unisa).

162

https://doi.org/10.47348/SAMLJ/v35/i2a3

(2023) 35 SA Merc LJ 162

© Juta and Company (Pty) Ltd

IINTRODUCTION

As South Africa’s growing unemployment crises continue to compound,

employers often f‌ind themselves f‌looded with applications for employment.

This causes some employers to resort to the use of specialised recruitment

agencies to assist with the recruitment of potential employees for their

businesses. As a result, applicants for employment interact with these third

parties (employment agencies) instead of their potential employers.

In many of these cases, recruitment agencies do not even disclose the

identity of the employer that they are assisting. It is submitted that this can

create a disconnect between the employer and applicants for employment as

it inevitably means that the latter often do not know the identity of the

potential employer for whose vacancy they are applying. This raises the

question about liability for discriminatory practices committed during

the recruitment process.

This contribution investigates the relationship between employment

agencies assisting employers with recruitment and placement services

(recruitment agencies), as def‌ined in the Employment Services Act 4 of

2014 (ESA), the employers that use the recruitment agencies, and

applicants for employment during recruitment processes. It further

examines ss 6 and 9 of the Employment Equity Act 55 of 1998 (EEA), the

latter of which extends discrimination protection to applicants for

employment. The motivation behind this is to determine which of the

parties, the recruitment agency or the employer, should incur liability in

the event that the former engages in conduct that infringess6of

the EEA.

This article argues that there is a lacuna in the regulation of

recruitment processes due to the lack of clarity regarding applicants for

employment. Although the EEA extends protection against unfair

discrimination to applicants for employment, it does not def‌ine nor

explain when, or under which conditions, a candidate qualif‌ies as an

applicant for employment. In addition, the meaning of the term is yet to

be judicially analysed.

1

The challenge is further complicated by the fact

thats4oftheEEAlimits the application of Chapter II to employees and

employers. This limitation in the scope of application of the EEA seems

to exclude recruitment agencies since it does not appear that applicants

applying for employment through these agencies engage them with the

intention of concluding contracts of employment with them.

The above observations raise two questions that this article unpacks

and to which it attempts to provide answers:

1

Grogan, Workplace Law 12 ed (Juta 2017) 88.

https://doi.org/10.47348/SAMLJ/v35/i2a3

LIABILITY FOR DISCRIMINATORY PRACTICES BY RECRUITMENT AGENCIES163

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