A study into South African pay discrimination case law, conducted by Stellenbosch Business School, has determined that “equal pay for equal work” rhetoric and anti-discrimination legislation has not had the desired effect.
This is despite the 2021 World Economic Forum Global Gender Gap Report ranking South Africa 18th out of 156 countries in terms of having progressive anti-discrimination law.
Professor Anita Bosch, Women at Work research chair at Stellenbosch Business School, says that between the passing of the Employment Equity Act in 1998 and 2020 only 26 pay discrimination claims were lodged at the Commission for Conciliation, Mediation and Arbitration (CCMA) or labour courts.
She notes that of the 26, only three cases were ruled in the employee’s favour.
“Our research showed that a sophisticated legal framework does not necessarily translate to equality or elimination of discrimination in practice.
“The legislation needs to be backed up by support mechanisms that enable employees to give effect to their rights,” says Bosch.
She adds that most employees failed to prove that a difference in pay amounted to unfair discrimination on grounds prohibited by law, which include race and gender.
Conversely, employers often succeeded in proving ‘fair’ pay discrimination on legally permitted grounds – including qualifications, length of service and work performance.
Perpetuating the power imbalance
The study indicates that cases also fail because employees struggle to identify fellow colleagues whose work and pay their own can be measured against, ultimately preventing them from comparing the equal value of their work.
To further dampen employees’ cases, the study indicates that they are hampered by a lack of knowledge of the law, the resources to employ professional legal teams, and access to internal company information on pay grades and job evaluations.
“The burden of proof on the complainant to provide the evidence and facts for the court to make a proper assessment perpetuates the power imbalance between the employer and employees,” says Bosch.
“Employers are generally in a stronger position to defend their cases by providing a factual foundation for differences in pay to the court.”
Read: South Africa is tightening its rules around executive pay, but gaps remain
What to do?
To make the law more effective in protecting employees’ rights, Bosch says employers should provide more transparency on pay policies, grades, and differences in remuneration.
“This would enable employees to decide whether their concerns [have] enough merit to be taken to court as well as compel employers to comply with equal pay laws, reducing the need for court cases.”
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Leana Diedericks, research fellow at Stellenbosch Business School, says trade unions should also ensure they have sufficient knowledge or engage legal experts to support their members and establish merit.
She says trade unions could partner with employers to provide education and awareness on pay differences and the criteria for discrimination claims.
“A focus on remuneration education by employers, with the assistance of job evaluation experts, would also go a long way to better informing employees on job evaluations, how pay is determined, and potential discrimination,” says Diedericks.
“Employers could ensure that discrimination is not perpetuated by carefully considering the grounds for pay differentials in their workplaces, including length of service. In this regard, historical inequalities of a structural nature should be carefully considered and addressed.”
Bosch says the implementation of the equal pay principle is both a moral and human rights issue and that perceptions of pay discrimination lead to distrust and employee disengagement.
“Strengthening of checks and balances in the relationship between employer and employee may result in improved remuneration governance on the part of the employer,” she adds.
Read: Not just the pay gap – women experience ‘punishment gap’ too
“It is in the interests of both employer and employee to strengthen mechanisms that can avert the perpetration of pay discrimination.”
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Nondumiso Lehutso is a Moneyweb intern.