Ensuring equal pay for equal work is a cornerstone of fairness in the workplace. The Employment Equity Act (EEA) prohibits unfair discrimination in terms and conditions of employment, including pay disparities based on factors such as race, gender, sexual orientation, disability, age, and arbitrary grounds.

Understanding the intricacies of equal pay requirements is crucial for both employees and employers to promote a fair and just work environment.

In this article, we will delve into the key aspects of equal pay requirements, including job comparisons, permissible grounds for differentiation, and steps for addressing pay disparities. Understanding these intricacies is crucial for both employees and employers to promote a fair and just work environment.

Equal Pay Under the EEA , the EEA Regulations and the Equal Pay Code of Good Practice

The EEA's equal pay requirement stipulates that any differences in terms and conditions of employment between employees performing the same or substantially similar work for the same employer constitute unfair discrimination if based on prohibited grounds.

These grounds include, but are not limited to:

Race, gender, sexual orientation, disability, age, and arbitrary grounds (any other unjustifiable distinction), as well as other grounds prohibited by the Employment Equity Act.

The key to challenging pay disparities lies in identifying a comparator, identifying a comparator means finding another employee within the same organization whose job is similar enough to warrant comparison.

How are jobs compared and when is it fair to be paid less?

To claim unfair discrimination regarding pay, an employee must compare their job to another employee performing similar work. If the jobs are found to be of equal value, employees in those roles should not experience wage disparities based on prohibited grounds of discrimination.

However, the Act allows for fair discrimination in specific circumstances. Employers are responsible for eliminating pay discrimination by ensuring that any differences in remuneration are justified.

The EEA regulations provide clear criteria to assess whether work is of equal value, and outlines permissible grounds for justifying pay differences. But what exactly are the criteria that make these pay differences fair and justifiable?

Employers can thus justify differences in pay based on factors like seniority, qualifications, performance, or specific skills. In other words, these factors can make a pay difference fair and reasonable.

However, if no valid reason exists for the disparity, it may be considered unfair discrimination, if it is based on a listed or arbitrary ground.

Understanding ‘arbitrary ground’ discrimination

Between 2021 and 2023, the CCMA received over 750 equal pay referrals, with around 92% citing 'arbitrary grounds' as the reason. This consistent trend highlights the prevalence of pay disparities attributed to non-traditional, nuanced factors.

The 2013 amendments to the Employment Equity Act (EEA) introduced the phrase "or on any other arbitrary ground," significantly expanding protections against discrimination beyond listed grounds like race or gender.

However, proving discrimination based on an arbitrary ground is nuanced.

In the case of Naidoo and Others v. Parliament of the Republic of South Africa [2020], the Labour Appeal Court ruled that an arbitrary ground must have the potential to impair human dignity.

This means employees cannot simply claim discrimination; they must demonstrate how their situation relates to one of the established grounds for discrimination.

Who needs to prove what? Understanding the burden of proof in discrimination claims

In discrimination claims, the burden of proof varies. For claims based on grounds like race or gender, employers must show that no discrimination occurred.

If discrimination is found, they must justify why the difference in pay or treatment was fair and reasonable. For arbitrary grounds, employees must prove that the employer's actions are unjustified and amount to unfair discrimination by impairing their dignity or having a significant impact.

Steps for employees claiming unequal pay for work of equal value

If you believe you are facing unequal pay, here are steps you should take:

Identify a Comparator and a Ground of Discrimination: (another employee performing similar work within your organisation and the ground on which the pay differentiation is based.)

If it is difficult to identify a ground of discrimination, consider whether the pay differentiation may be an Unfair Labour Practice in terms of the Labour Relations Act.

Gather Evidence: Collect relevant documentation, such as job descriptions and pay slips, to support your claim.

Document Your Concerns: Keep a record of communications regarding pay and responsibilities.

Approach Your Employer: Raise your concerns with your supervisor or HR department before escalating the issue.

Refer to the CCMA: If the issue remains unresolved, approach the CCMA within six months of the discriminatory conduct (or three months if bringing an Unfair Labour Practice dispute).

Guidance for Employers

To foster a fair pay structure, employers should:

Create a Fair Pay Structure: Develop a transparent pay scale reflecting the value of each role.

Conduct Regular Pay Audits: Periodically review pay practices to identify any disparities.

Training and Awareness: Provide training for management on recognizing and addressing unconscious bias in pay decisions.

Encourage Open Dialogue: Foster an environment where employees feel comfortable discussing pay concerns.

Conclusion: Creating a Fairer Workplace

The principle of equal pay for equal work is not just a legal requirement but a moral imperative to correct historical injustices and foster equality in the workplace.

By addressing pay inequities based on race, gender, and arbitrary grounds, South Africa can begin to dismantle the legacy of workplace discrimination and create a more just future for all workers.

* Charlton Visagie is a Labour Relations specialist with a Master's in Labour Law from the University of Cape Town, skilled in employee relations, collective bargaining, individual labour issues, and employment equity.

** The views expressed herein are not necessarily those of IOL or Independent Media.

Charlton Visagie

Equal pay for equal work! How to shatter the barriers of unfair discrimination in South Africa