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It appears that a person who has been turned down for employment on the grounds of nepotism will not be aided by the courts. However, birth is one of the grounds listed for unfair discrimination in section 6 of the EEA. As such, could a job applicant who has been rejected because he was not a family member succeed with a dispute on the grounds of unfair birth discrimination by arguing that he was rejected because he was not born into the employer’s family?
When dealing with nepotism, one needs to consider K Naidoo and others v Parliament of the RSA (CA 4/2019) (handed down on 7 May 20219). In this matter, the Labour Appeal Court held that nepotism does not meet the test for discrimination set out in Harksen v Lane.
Nepotism is not necessarily an affront to human dignity. It differs from racism. Thus, nepotism may be considered wrongful, it is not a form of unfair discrimination within the scope of section 6(1) of the EEA. Even if a person alleges discrimination on the ground of ‘birth’ as per the given facts, it is unlikely that such discrimination would be found to be unfair.
Possibly one could claim discrimination on an arbitrary ground if one can prove that the only reason the employer chose the family member was because they were related to another employee by birth. I think they could claim discrimination that is unfair because the employer’s reason is not linked to affirmative action or inherent requirements.
Possibly one could claim discrimination on an arbitrary ground if one can prove that the only reason the employer chose the family member was because they were related to another employee by birth. I think they could claim discrimination that is unfair because the employer’s reason is not linked to affirmative action or inherent requirements.
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