n Stellenbosch Law Review = Stellenbosch Regstydskrif - Family responsibility discrimination litigation - a non-starter?

Volume 20, Issue 2
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



While the importance of combining paid employment with the need to provide care to others is becoming an internationally acknowledged workplace concern, the South African government - along with employers - has been slow to respond to the needs of employees as caregivers. This article focuses on the regulation of flexible working arrangements for the purpose of providing employees with time to care. It analyses the demands placed upon the South African employee-caregiver in balancing the obligations of work and care, the legislative framework that prohibits family responsibility discrimination, and the obligations imposed upon employers to accommodate employees with family responsibilities in a reasonable manner. The article then considers the reasons why the Employment Equity Act 55 of 1998 has been grossly underutilised and ineffective in advancing the right to flexible working conditions. By means of a comparative analysis of the Australian legal system, it is established that the obstacles encountered and consequent underutilisation of anti-discrimination legislation is not an exclusively South African phenomenon. Guided by international developments, the article argues for government initiatives to promote consultation between key participants in employment relations in South Africa over the right to request flexible working arrangements, given that the attainment of this right through family responsibility discrimination litigation has not been successful.

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