The proximity bias gap in the workplace: A critical analysis of indirect discrimination in South Africa.

II Introduction

South Africa’s rapid post-pandemic shift into remote and hybrid work has fundamentally restructured performance management, moving metrics from direct observation to output-based deliverables. However, this change has precipitated “proximity bias”, also referred to as an “out of sight, out of mind” phenomenon, where office-based senior management systematically undervalues remote workers in career advancement. This bias disproportionately disadvantages caregiving women, for whom working from home has collapsed the boundaries between professional duties and gendered domestic labour, creating a gruelling “double-double shift”.

Crucially, South Africa’s statutory framework contains a legal gap regarding this bias, as “remote status” is not a listed protected ground under the Employment Equity Act (EEA). Consequently, under Section 11(2) of the EEA, the burden of proof remains entirely on the employee to prove that such differential treatment is irrational and unfair. While recent case law establishes boundaries of operational reasonableness and corporate authorisation, the lack of explicit statutory rights leaves remote caregivers legally vulnerable.

1. Historical background

Historically, remote work was not a mainstream norm in South Africa before the COVID-19 pandemic.[1] Traditional business models relied heavily on physical office spaces, where employee performance was measured through direct observation, “face time,” and time/attendance monitoring systems.[2] The onset of the COVID-19 pandemic in March 2020 abruptly forced South African organisations to move to remote and hybrid working models to ensure business continuity.[3] This rapid shift exposed the inadequacy of traditional input-based performance measures, as managers could no longer observe employees’ work habits directly.[4] Under these conditions, a major workplace challenge emerged: proximity bias.[5] Proximity bias occurs when senior management is primarily office-based and therefore focuses more on employees they see in person day-to-day, to the detriment of remote workers.[6] This skewed view of the workforce often feeds into management decisions, meaning that remote workers risk being undervalued or overlooked in performance appraisals, promotion cycles, training opportunities, and restructuring decisions.[7] To combat this invisibility and prove their productivity to managers, South African remote workers frequently face pressure to work longer, erratic hours, which severely blurs the boundaries between work and private life.[8] For working women especially, this role-juggling has transformed the traditional “second shift” of caregiving and domestic duties into an exhausting “double-double shift” within the isolation economy.[9] Consequently, performance management has had to transition from monitoring inputs (hours worked) to managing outputs and deliverables.[10] However, managing remote performance successfully requires a foundation of high trust and continuous feedback, which stands in direct tension with employers resorting to invasive digital surveillance such as keystroke tracking, screenshots, and GPS tracking to verify remote performance.[11]

2. Research statement

Despite the ongoing prevalence of remote and hybrid work models in South Africa, the law does not explicitly protect remote and hybrid workers from proximity bias, as “remote” status is not recognised as a protected ground under the EEA. This omission is notably significant because ostensibly neutral workplace rules such as imposing strict online hours, mandating night shifts, requiring overtime, or maintaining promotion preferences for full-time or on-site staff may indirectly disadvantage women with caregiving responsibilities. In these cases, the disproportionate effect on women arises precisely because caregiving duties are still predominantly gendered roles in South African society. Where such rules place an undue burden on women, the indirect discrimination can be directly connected to sex, gender, or family responsibility, all of which are protected grounds under the EEA.

3. Roadmap

This study commences by outlining the South African legal framework and relevant judicial precedent. It then provides a critical evaluation alongside comparative perspectives from international jurisdictions. Finally, the study ends with key findings and policy recommendations.

III Main Body

1. South African legal framework and judicial precedent

The primary statutory framework governing discrimination in South Africa is the Employment Equity Act 55 of 1998 (EEA).[12] Section 6(1) of the EEA provides that “No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, and birth.”[13] Importantly, section 1 of the EEA defines “employment policy or practice” to include, among other things, “recruitment procedures, advertising and selection criteria, appointments and the appointment process, job classification and grading, remuneration, employment benefits and terms and conditions of employment, job assignments, the working environment and facilities, training and development, performance evaluation systems, promotion, transfer, demotion, and dismissal of employees, and disciplinary measures.”[14] However, an employee’s location such as “remote” or “hybrid” status is not recognised as a listed protected ground under section 6(1). According to section 11(2), if unfair discrimination is alleged on an arbitrary ground that is not explicitly listed, “the complainant must prove, on a balance of probabilities, that the conduct complained of is not rational, amounts to discrimination, and is unfair.”[15] Therefore, the remote worker bears the evidentiary burden to demonstrate that a performance policy or decision is irrational, constitutes discrimination, and is unfair within the meaning of the Act. Conversely, if a remote performance practice disproportionately affects a group protected by one of the listed grounds such as women with caregiving as well as family responsibilities this may amount to indirect discrimination under section 6(1). In such cases, unfairness is presumed and the burden of proof shifts to the employer to justify the practice in terms of section 11(1).[16] Additionally, section 6(3) of the EEA expressly prohibits harassment as a form of unfair discrimination.[17]

South African courts have increasingly had to arbitrate disputes involving remote work, performance expectations, and return-to-office (RTO) instructions. Two contrasting cases illustrate the difference in the court’s rulings for this issue. In Medici Energy (Pty) Ltd v Bennet No and Others[18] (“Medici Energy”), a sales executive, Ms Roux, had a long-standing remote work arrangement in place for over two years to care for her child.[19] After she requested formal grievance documentation to complain about two managers, the company abruptly instructed her to return to the office with effectively no notice. She refused and was dismissed for gross insubordination.[20] The Labour Court upheld the CCMA’s finding that the dismissal was simultaneously substantively and procedurally unfair.[21] The court affirmed that while an instruction to return to the office may be lawful, it must also be reasonable.[22] The unilateral withdrawal of a remote working arrangement, without a substantiating, pressing operational reason, and its use in retaliation for filing a grievance is legally unreasonable.[23]

In contrast, Mushwana v Thabazimbi Local Municipality and Others[24] (“Mushwana”) involved a local economic development manager, Mr Mushwana, who claimed the municipal safety officer authorised him to work from home during the pandemic.[25] He remained 250 kilometres away from his designated workplace, missed multiple virtual meetings, failed to submit reports, and caused severe operational challenges resulting to a communication breakdown.[26] He was dismissed for gross insubordination and dereliction of duty.[27] The Labour Court dismissed the employee’s review application, finding the dismissal substantively and procedurally fair.[28] The court established that employees cannot unilaterally claim the right to work from home without complying with formal, documented company authorisation processes.[29] Furthermore, employees cannot assert they are working from home if they are not within reasonable physical proximity to the workplace to fulfil roles that inherently require face-to-face community interaction.[30]

In Mahlangu and Another v Minister of Labour and Others[31], while dealing with domestic workers’ exclusion from COIDA, the Constitutional Court’s landmark ruling endorsed an intersectional framework by evaluating race, gender, class, and social status simultaneously.[32] Thus, this intersectional approach is vital when assessing remote work policies; a seemingly neutral performance policy can produce compounded, discriminatory disadvantages for marginalised groups working from home.

2. Critical evaluation

In essence, proximity bias occurs when management favours in-person staff over remote or hybrid employees. This bias penalises off-site workers in performance reviews, promotions, and redundancy decisions. In South Africa, COVID-19 forced a rapid shift toward widespread remote working. Due to gendered domestic care burdens, remote work created a “double-double shift” for women. Thus, merging domestic space with the workplace turned flexible arrangements into the burden of “living at work.”

If we apply the legal framework to such a scenario, the core statutory mechanism for addressing workplace discrimination is section 6(1) of the EEA, which prohibits direct and indirect unfair discrimination in any “employment policy or practice”. The definition explicitly includes performance evaluation systems. However, an employee’s working location or “remote worker status” is not a listed protected ground under Section 6(1). Because remote status is not listed, any claim of proximity bias or discriminatory performance appraisal falls under the category of differentiation on an “arbitrary ground”. Under Section 11(2) of the EEA, the legal burden of proof does not shift to the employer; instead, the complainant must prove on a balance of probabilities that the employer’s conduct is irrational, discriminatory in its effect, and unfair.[33] As legal scholars note, proving that a manager’s performance rating was warped by a subconscious preference for office-based “face time” is an exceptionally high evidentiary hurdle for an isolated, remote employee.[34]

Therefore, to bypass the steep demands of section 11(2), caregiving women must establish indirect discrimination under Section 6(1). This requires proving that a seemingly neutral performance policy disproportionately impacts a protected group. In this case, being a woman with “family responsibility” is a listed ground under the EEA.[35] Following the ratio decidendi endorsed in Mahlangu v Minister of Labour, courts are likely to adopt an intersectional approach. In that case, Justice Victor affirmed that discrimination cannot be evaluated using a single-axis comparison.[36] Instead, courts must recognise how multiple axes of oppression such as race, gender, class, and social origin converge to multiply the vulnerability of specific workers.[37] For example, remote work requirements such as mandatory after-hours meetings or rigid online presence standards may disadvantage Black women who are often primary caregivers in multigenerational households. These women may also lack consistent access to high-speed internet or adequate workspace due to socio-economic disparities, compounding existing racial and class-based disadvantage. As a result, a performance management system that penalises home-office workers disproportionately harms caregiving women, particularly Black women, who experience the intersecting pressures of historical, financial, and generational care burdens unique to South African society.

The fundamental legal gap exposed by Medici Energy and Mushwana is that South African statutory law does not provide an explicit “right to request” flexible or remote work arrangements. South African employers retain unilateral power over working arrangements, subject only to the common-law limits of “reasonableness” and contractual agreements. This leaves caregiving women entirely dependent on ad hoc individual contracts rather than protected statutory rights. Thus, they can only have recourse if they launch a claim of indirect discrimination, which, as seen above, is very difficult for a remote employee to prove; it demands strong causal evidence and complex demographic or statistical comparisons, which isolated remote workers rarely have the resources to compile.

Since traditional performance frameworks appear built on physical observation, many remote working employees reported a perceived need to work longer and erratic hours to “prove” their productivity to managers.[38] Qualitative research with South African female public service managers illustrates that remote work routinely results in extended working hours, after-hours virtual meetings (sometimes as late as 8 PM), and extreme boundary blurring.[39] As sociologist Kathryn Pillay notes, urging women who are drowning under the burden of caregiving, homeschooling, and remote workloads to use “breath work, meditation, and bath salts” is a tone-deaf exercise in gaslighting.[40] It places the onus of coping on the individual employee rather than tackling the main issue embedded in the organisation’s performance evaluations.[41]

3. Comparative perspectives

The UK affords a valuable comparative policy lesson in dealing with proximity bias through statutory protections. Employees in the UK have a legally recognised right to request flexible working, which was broadened under the Employment Relations (Flexible Working) Act 2023, effective from April 6, 2024.[42] This legislation allows employees to submit up to two formal requests to modify their working arrangements (such as hours, times, or locations) in any 12-month period.[43] Employers are required to engage in a formal consultation before refusing such requests.[44] Crucially, UK Employment Tribunals interpret employer decisions that disadvantage remote workers—such as denying promotions or bonuses on the basis of lack of ‘visibility’—as potentially amounting to indirect sex discrimination. Because women statistically carry a greater share of caregiving responsibilities, tribunals scrutinise ‘presence’ requirements within performance metrics to determine whether they create unjustified barriers, unless employers can show that these requirements are a proportionate means of achieving a legitimate business objective.[45] This approach delivers a model for statutory intervention in mitigating proximity bias and protecting caregiving workers, highlighting the policy gap in South African law.

There is no equivalent federal statutory “right to request” remote or flexible work in the US. However, remote work has increasingly become integrated as a “reasonable accommodation” under the Americans with Disabilities Act[46] (“ADA”).[47] US disputes highlight that because remote work was widely utilised during the pandemic, it has altered the accommodation landscape; it is now exceptionally difficult for employers to argue that working from home is “unduly burdensome” or not a reasonable accommodation for employees with qualifying disabilities.[48]

IV Conclusion and recommendations

In conclusion, this article has shown that proximity bias amounts to a significant and underexplored form of indirect workplace discrimination in South Africa’s remote and hybrid work environment. Although the EEA offers protection against unfair discrimination, its failure to list remote status as a protected ground leaves many remote workers, especially caregiving women, dependent on difficult indirect discrimination claims. Case law shows that employers may regulate remote work, but such decisions must be reasonable, procedurally fair, and grounded in genuine operational needs. Comparative insights from the UK and US further show that clearer statutory protections and flexible work rights are possible. In light of these conclusions, South Africa should adopt specific policy reforms. First, the legislature should amend the EEA to recognise remote work status or family responsibility as a protected ground, thereby lowering the evidentiary burden for remote workers with caregiving duties. Second, a statutory Code of Good Practice on remote and hybrid work should be introduced, requiring employers to undertake objective performance assessments based on output rather than physical presence, and to deliver transparent criteria for promotions and appraisals. Third, any use of digital surveillance for performance monitoring should be subject to clear limitations to safeguard workers’ privacy. Finally, employers should be required to consider flexible work requests in good faith, particularly from employees with caregiving responsibilities. Without these targeted reforms, proximity bias will continue to entrench inequality in the modern workplace.

Bibliography

Cases:

Mahlangu and Another v Minister of Labour and Others [2020] ZACC 24.

Medici Energy (Pty) Ltd v Bennet No and Others (unreported case no C89/2023, 21-5-2025).

Mushwana v Thabazimbi Local Municipality and Others [2025] ZALCJHB 391.

Statutes and statutory instruments:

South Africa:

Employment Equity Act 1998.

UK:

Employment Relations (Flexible Working) Act 2024.

USA:

Americans with Disabilities Act 1990.

Journal articles:

Calvin M. Mabaso, Natalie Manuel, ‘Performance management practices in remote and hybrid work environments: An exploratory study’ [2024] 50 SA Journal of Industrial Psychology 1-13.

Kelly Clayton & Roslyn T. de Braine, ‘Performance management process changes on the work identity of employees during COVID-19’ [2023] 49 SA Journal of Industrial Psychology 1-10.

Online journals:

Atiek I. Wijayanti, Ahmad F. Pane, Achmad N. Khaeri, Miko M. Irwanto, ‘Digital Presenteeism: The Phenomenon of Apparent Presence and Employee Productivity in the Era of Hybrid Work’ [2026] 3(3) Maneggio 97-109 < https://doi.org/10.62872/p2kmxx56> accessed 4 September 2026.

Willie T. Chinyamurindi, ‘The intended and unintended consequences of remote working: Narratives from a sample of female public service managers in South Africa’ [2022] 13 Front. Psychol 1-13 <https://doi.org/10.3389/fpsyg.2022.949914> accessed 5 September 2026.

Kathryn Pillay, ‘Who Cares? Exploring the Impact of the Isolation Economy and the Care-Giving Crisis on Working Women in South Africa’ [2023] 22(1) Artha – Journal of Social Sciences 41-78 < https://doi:10.12724/ajss.64.3> accessed 5 September 2026.

Command papers and Law Commission reports:

NEDLAC Labour Law Reform Remote and hybrid work(ers): Considerations for regulating remote working arrangements and a code of good practice for remote work (2024) 1-33.

Websites and blogs:

Mark D’Alelio, ‘Exploring a Hybrid Future’ (IR Global, 2022) < https://www.coleschotz.com/wp-content/uploads/2022/11/IRG_Hybrid-Future_low.pdf> (accessed 05-08-2026).

Rebecca Torrey, ‘Proximity bias is becoming a critical issue in hybrid workforces – what do businesses need to be aware of and how can they ensure they are not discriminating against remote employees?’ (IR Global, 10 June 2022) < https://irglobal.com/article/proximity-bias-is-becoming-a-critical-issue-in-hybrid-workforces-what-do-businesses-need-to-be-aware-of-and-how-can-they-ensure-they-are-not-discriminating-against-remote-employees/> accessed 4 September 2026.

Thomas H. Curran, ‘Exploring a Hybrid Future’ (IR Global, 2022) < https://www.coleschotz.com/wp-content/uploads/2022/11/IRG_Hybrid-Future_low.pdf> (accessed 05-08-2026).

[1] Kelly Clayton & Roslyn T. de Braine, ‘Performance management process changes on the work identity of employees during COVID-19’ [2023] 49 SA Journal of Industrial Psychology 1.

[2] Calvin M. Mabaso, Natalie Manuel, ‘Performance management practices in remote and hybrid work

environments: An exploratory study’ [2024] 50 SA Journal of Industrial Psychology 1, 4.

[3] Kelly Clayton & Roslyn T. de Braine, ‘Performance management process changes on the work identity of employees during COVID-19’ [2023] 49 SA Journal of Industrial Psychology 1.

[4] ibid.

[5] Mark D’Alelio, ‘Exploring a Hybrid Future’ (IR Global, 2022) pg 8 < https://www.coleschotz.com/wp-content/uploads/2022/11/IRG_Hybrid-Future_low.pdf> (accessed 05-08-2026).

[6] ibid.

[7] NEDLAC Labour Law Reform Remote and hybrid work(ers): Considerations for regulating remote working arrangements and a code of good practice for remote work (2024) 1 3.

[8] ibid, pg 8.

[9] Kathryn Pillay, ‘Who Cares? Exploring the Impact of the Isolation Economy and the Care-Giving Crisis on Working Women in South Africa’ [2023] 22(1) Artha – Journal of Social Sciences 41 42 < https://doi:10.12724/ajss.64.3> accessed 5 September 2026.

[10] Kelly Clayton & Roslyn T. de Braine, ‘Performance management process changes on the work identity of employees during COVID-19’ [2023] 49 SA Journal of Industrial Psychology 1.

[11] NEDLAC Labour Law Reform Remote and hybrid work(ers): Considerations for regulating remote working arrangements and a code of good practice for remote work (2024) 7.

[12] Employment Equity Act 1998.

[13] Employment Equity Act 1998, s 6(1).

[14] ibid, s 1.

[15] ibid, s 11(2).

[16] ibid, s 11(1).

[17] ibid, s 6(3).

[18] Medici Energy (Pty) Ltd v Bennet No and Others (unreported case no C89/2023, 21-5-2025).

[19] ibid, [5].

[20] ibid, [8].

[21] ibid, [10]-[12].

[22] ibid, [10]-[12].

[23] ibid, [10]-[12].

[24] Mushwana v Thabazimbi Local Municipality and Others [2025] ZALCJHB 391.

[25] ibid, [6]-[7].

[26] ibid, [15]-[20].

[27] ibid, [21]-[26].

[28] ibid, [43].

[29] ibid, [38]-[43].  

[30] ibid, [38]-[43].  

[31] Mahlangu and Another v Minister of Labour and Others [2020] ZACC 24.

[32] ibid.

[33] Employment Equity Act 1998, s 11(2).

[34] NEDLAC Labour Law Reform Remote and hybrid work(ers): Considerations for regulating remote working arrangements and a code of good practice for remote work (2024) 10.

[35] Employment Equity Act 1998, s 6(1).

[36] Mahlangu and Another v Minister of Labour and Others [2020] ZACC 24 [83].

[37] ibid, [90].

[38] Atiek I. Wijayanti, Ahmad F. Pane, Achmad N. Khaeri, Miko M. Irwanto, ‘Digital Presenteeism: The Phenomenon of Apparent Presence and Employee Productivity in the Era of Hybrid Work’ [2026] 3(3) Maneggio 97 97 < https://doi.org/10.62872/p2kmxx56> accessed 4 September 2026.

[39] Willie T. Chinyamurindi, ‘The intended and unintended consequences of remote working: Narratives from a sample of female public service managers in South Africa’ [2022] 13 Front. Psychol 1 8 <https://doi.org/10.3389/fpsyg.2022.949914> accessed 5 September 2026.

[40] Kathryn Pillay, ‘Who Cares? Exploring the Impact of the Isolation Economy and the Care-Giving Crisis on Working Women in South Africa’ [2023] 22(1) Artha – Journal of Social Sciences 41 53 < https://doi:10.12724/ajss.64.3> accessed 5 September 2026.

[41] ibid.

[42] Employment Relations (Flexible Working) Act 2024, s 1.

[43] ibid, s 1(4).

[44] ibid, s 1(5).

[45] Rebecca Torrey, ‘Proximity bias is becoming a critical issue in hybrid workforces – what do businesses need to be aware of and how can they ensure they are not discriminating against remote employees?’ (IR Global, 10 June 2022) < https://irglobal.com/article/proximity-bias-is-becoming-a-critical-issue-in-hybrid-workforces-what-do-businesses-need-to-be-aware-of-and-how-can-they-ensure-they-are-not-discriminating-against-remote-employees/> accessed 4 September 2026.

[46] Americans with Disabilities Act 1990.

[47] Thomas H. Curran, ‘Exploring a Hybrid Future’ (IR Global, 2022) 73 < https://www.coleschotz.com/wp-content/uploads/2022/11/IRG_Hybrid-Future_low.pdf> (accessed 05-08-2026).

[48] ibid.