EEA update: Not adhering to equal pay for work of equal value is an act of unfair discrimination

By Fiona Leppan and Benjamin Cripps

Section 6(4) of the Employment Equity Amendment Act, No 47 of 2013 (EEA), states that if an employer doesn't stick to the 'equal pay for work of equal value' rule, this is an act of unfair discrimination. In real terms, what does this mean?

Recently, the minister of labour distributed draft regulations to the EEA, which lay out exactly what an act of unfair discrimination – under the equal pay for work of equal value rule in the EEA - is.

Although the standard gives employees an individual right, the onus will be on the aggrieved employee to prove that their salary is less than someone else who's performing work of an equal value on the basis of either a listed or unlisted ground.

This means that your employee will need to address the following potential problems:

• Identifying who exactly performs work of equal value.
  
  In Ntai & Others v South African Breweries Ltd [2001] 2 BLLR 186 (LC), the applicants identified two white employees whose work was of equal value to theirs. Although the Labour Court accepted the submission of the two white employees, it held that the applicants didn't sufficiently prove the allegation of arbitrary discrimination.
• Proving a causal link between the unequal pay and the alleged conduct. 
  
  To succeed with proving unfair discrimination, the employee must prove that there's a link between these two.

In Ntai, the Labour Court found that the applicants didn't prove the link between the employees' race and remuneration levels. The court stated the fact that there was an anti-discrimination provision present didn't mean that the company could practise affirmative action.

If an employee claims indirect discrimination, he will have to provide proof of this allegation, which may take the form of, e.g. statistics or alternative relevant facts.

• 
  If an employee claims unfair discrimination on an unlisted ground (arbitrary discrimination), the employee must show that the discrimination impacted on their human dignity. In Numsa and Others v Gabriel (Pty) Ltd (2002) 23 ILJ 2088 (LC):

- The applicants didn't succeed in proving that the reason for the differentiation affected their human dignity.

- The Labour Court held that the applicants did no more than try to describe the difference in pay as being "disproportional, irrational, arbitrary and capricious", and "arbitrary, capricious and irrational actions/practices of the respondent".

- Although the regulations provide employers with certain defences to claims of unfair discrimination on this basis, employers won't be able, objectively, to raise a lack of intention to discriminate as a defence.

As long as employers are able to justify differences in remuneration - where employees perform the same or similar work or their work is of a comparable value to an organisation on the basis of fair criteria (such as responsibility, expertise or skills), employers shouldn't be held liable.

This article first appeared on HR Pulse.