The “Barnard principle” refers to the ruling of the Constitutional Court in South African Police Service v Solidarity obo Barnard 2014 (10) BCLR 1195 (CC) to the effect that an employer could refuse promotion to a white woman because persons of her demographic category were already over-represented at the occupational level in question. But does the same apply to black people, who suffered the brunt of apartheid and are the primary beneficiaries of affirmative action?
The court found that it did. For a workforce to be equitably representative, it was held, there should be equitable representation not only of black employees (as opposed to white) in an overall sense, but also of each category of black persons (African, Indian, coloured) within the workforce. Even if the demographic criterion no longer has the same binding force that it previously did, it cannot be ignored and, to the extent that an employer relies on it, the “Barnard principle” can be applied across the board.
Excerpt from Much ado about – what exactly? Professor Darcy du Toit’s latest Weekly Comment in IR Network published by LexisNexis [subscription required]
Solidarity v Department of Correctional Services(CCT 78/15) [2016] ZACC 18 (15 July 2016)
See also: Employment equity plan: Failure to appoint discriminatory