The 'inherent job requirement' defence — Lessons from abroad

• Jurisdiction: South Africa
• Pages: 173-182
• Published date: 25 May 2019
• Date: 25 May 2019
• Citation: (1998) 10 SA Merc LJ 173
• Author: Melanie Naidu

The 'Inherent Job Requirement'

Defence—Lessons from Abroad

MELANIE NAIDU *

University of South Africa

1 Introduction

The concept 'indirect discrimination' first appeared in South African

legislation in the (interim) Constitution of the Republic of South Africa.

1

It was later incorporated into the (final) Constitution of the Republic of

South Africa.

2

However, the general prohibition on indirect discrimina-

tion did not refer to a defence to a claim of discrimination of this kind.

3

The defence came only in the Labour Relations Act,

4

where it is stated

that, together with affirmative action programmes, 'any discrimination

based on an inherent requirement of the particular job does not constitute

unfair discrimination'.

5

This defence is also included in s 187(1)(f),

where it is stated that a dismissal will be regarded as automatically unfair

if the reason for the dismissal is that the employer unfairly discriminated

against an employee. But if an employer can prove that the discrimina-

tion is the result of an inherent job requirement, the act will be regarded

as fair.

6

The defence of 'inherent job requirement' was first formulated by the

International Labour Organization in its Discrimination (Employment

and Occupation) Convention.' The Convention stated that 'any

distinction, exclusion or preference in respect of a particular job based

on the inherent requirements thereof shall not be deemed to be

discrimination'.

8

In adopting this defence, South Africa is, therefore,

clearly in line with international trends.

The adoption of this defence, however, is likely to cause many

problems. The interpretation of the 'inherent job requirement' defence

will have significant implications for future discrimination cases. An

expansive interpretation, on the one hand, could create an escape clause

for employers facing discrimination suits. A restrictive interpretation, on

* BA LLB LLM (Natal). Lecturer in the Department of Mercantile Law, University of South

Africa.

Act 200 of 1993.

Act 108 of 1996.

3

In ch 2, the Bill of Rights, the Constitution merely states that '[d]iscrimination on one or more

grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair

(s 9(5)).

4

Act 66 of 1995.

5

Schedule 7 item 2(1).

6

In terms of s 187(2), discrimination will also be regarded as fair, if, although it is based on age,

the employee has reached the normal or agreed retirement age of persons employed in that

capacity.

7

Convention No 111 (1958).

8

Article 1(2).

173

(1998) 10 SA Merc LJ 173

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