By Judith Griessel, Griessel Consulting
The amendments to the Employment Equity Act in August 2014 have brought changes to the unfair discrimination dispensation in terms of section 6 of the Act. Most notably was the addition of so called “unequal pay for equal work” provision as a form of unfair discrimination.
Employers and HR professionals may have heard horror stories about remuneration practices and policies which would have to be entirely overhauled – and some employees no doubt have already jumped onto the bandwagon and lodged claims at the CCMA on this basis.
In an equal pay claim, the employee (complainant) must show that he/she has been paid differently than another employee (comparator) employed by the same employer and that this is based on a prohibited ground such as gender or race, or on an arbitrary ground. The comparator must perform the same or similar job, or work of equal value as the complainant. If the complainant is successful in this regard, the onus to (dis)prove unfair discrimination will thereafter depend on the alleged discriminatory ground forwarded by the complainant: if it is a listed ground, the employer must rebut a presumption of unfair discrimination; and if it is an arbitrary ground, the complainant must prove everything.
The probability of an equal pay claim brought by a disgruntled employee is however not the only exposure an employer has in terms of the new provisions. There is a general duty on employers to take steps to eliminate unfair discrimination in the workplace – which now includes unfair discrimination relating to terms and conditions of employment, remuneration and benefits. So – there is indeed a need for employers to revisit their employment practices and policies in a pre-emptive exercise to determine if their existing remuneration practices are fair in this regard and if not, to take remedial steps to rectify the situation.
It is not something to panic about, but it is something that needs to be done with a proper understanding of all the issues and legal principles at play. If the audit shows a differentiation in remuneration or terms and conditions of employment for employees doing work that is the same / similar / of equal value, this is not necessarily a problem for the employer. Only unfair discrimination is prohibited and there are various justification grounds for fair differentiation to be found in the Regulations and the Act.
An employer conducting such an audit must therefore know what to look for and how to identify when there is permissible or justified differentiation. Sometimes the reason for differentiation may seem justified, but the application of the practice may result in indirect unfair discrimination. Remember that it is not a defence to say that discrimination was unintentional; nor can an employer rely on the provisions of a collective agreement to justify unfair discrimination s a result of its application.
The Department of Labour has issued Regulations and a draft Code of Good Practice to assist employers and to explain the terminology and methodology – however, it is not exactly straightforward. Analysing and cross-referencing the different legal provisions, looking up applicable case law guidelines and interpretations and reducing it all to a workable tool to use in relation to ‘equal pay‘ issues, is quite an exercise – as I can say from experience. It took many hours of studying, mind-mapping and sorting to get my mind around the principles and compile a reasonably understandable practice document in this regard.
Seeing that now is the time for sharing and giving, this document is, for a limited time, available to practitioners and employers who might be interested in purchasing a copy thereof.