Equal Pay claims explained - simply

equal pay Feb 11, 2020

 

I received the following question via email this week:

"I need advice as I'm working for the company performing the same job with other employees but I'm not getting the same salary as theirs. Is it legal? What must I do in a situation like this?"

This is an often-asked question and based on a number of misconceptions. There is no 'short' answer, but I'll highlight the most important points.

'Equal pay for equal work' does NOT literally mean that if an employee does the same job as a fellow employee, they must be paid the same amount – as per the question above.

Employers are not required to pay all their comparable employees the same remuneration. The Employment Equity Act prohibits:

  • unfair
  • discrimination
  • based on a difference in terms and conditions of employment
  • between employees of the same employer
  • performing the same or substantially the same work or work of equal value
  • that is directly or indirectly based on any one or more of the grounds listed in section 6(1): “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, birth or on any other arbitrary ground.”

Let’s assume for now that the employee can successfully prove that this complaint concerns (1) employees who work for the same employer, (2) and who do comparable work, (3) and that there is a difference in remuneration. These are prerequisites. 

The Employment Equity Act only prohibits violations of the right to equality. Not all differentiations however automatically constitute such a violation. So it must further be proved that this differentiation complained about is of a type that is prohibited by the EEAct, i.e. that it is in fact (4) discrimination, and then that such discrimination is (5) unfair:

  • A differentiation only becomes discrimination once a differentiation takes place for an unacceptable reason – i.e. those reasons referred to in section 6(1) of the EEA.
  • Even if claiming discrimination on an ‘arbitrary ground’, it has to be shown that the dignitas or the right of equality of the complainant as a person, his/her personal attributes and characteristics, have been impaired or prejudiced.
  • ‘“Arbitrary” ........ is not a synonym for “irrationality” or even ‘unlawfulness’. Something may therefore be irrational or unlawful, but would still not be discrimination.
  • Irrationality of differentiation per se will not win a discrimination case based on an arbitrary ground - the conduct must cause an injury to human dignity.
  • Discrimination has to exist to begin with before rationality is considered - irrationality does not win a case, the irrationality of discrimination does.

It could therefore only be potentially unfair discrimination if there is a difference in remuneration between employees who are suitable comparators; and if that differentiation is based on a prohibited ground.

The employee further:

  • has to identify the ground upfront;
  • cannot make a mere allegation – but has to provide substantiating evidence linking this ground to the different treatment.

However – even after all of this has been established, the employer can still (6) justify the apparent discrimination to show that it is, after all, not unfair.

  • Differentiation / discrimination is not unfair if the employer’s conduct or application is rational; fair or otherwise justifiable.
  • Examples:
    • seniority/length of service,
    • qualifications, ability, experience, competence or potential above the minimum performance levels;
    • performance, quantity or quality of work;
    • temporary placements due to demotion or training;
    • shortage of relevant skills, or the market value in a particular job classification; etc.
    • market forces (demand and supply)

 

This is not an easy topic, and frequently misunderstood. There has been a fair amount of litigation about this and we can certainly expect more to come.   

 

© Judith Griessel

 

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