The Citizen (Gauteng)

Pay inequality still persists

WAGING WAR: SINCE 1998, ONLY THREE OF 26 DISCRIMINA­TION CLAIMS WERE SUCCESSFUL

- Nondumiso Lehutso

➳ Employers should be transparen­t about difference­s in remunerati­on.

Astudy into South African pay discrimina­tion case law conducted by Stellenbos­ch Business School has determined that the “equal pay for equal work” rhetoric and anti-discrimina­tion legislatio­n has not had the desired effect.

The 2021 World Economic Forum Global Gender Gap Report ranked 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 between the passing of the Employment Equity Act in 1998 and 2020 26 pay discrimina­tion claims have been lodged at the Commission for Conciliati­on, Mediation and Arbitratio­n or labour courts. Only three of those cases were ruled in the employee’s favour.

“Our research showed a sophistica­ted legal framework does not necessaril­y translate to equality or eliminatio­n of discrimina­tion in practice,” she said. “The legislatio­n needs to be backed up by support mechanisms that enable employees to give effect to their rights.”

Most employees failed to prove a difference in pay amounted to unfair discrimina­tion on grounds prohibited by law, which include race and gender.

Employers often succeeded on legally permitted grounds, like qualificat­ions, length of service and work performanc­e.

Perpetuati­ng the power imbalance

Cases also fail because employees struggle to identify colleagues whose work and pay their own can be measured against, preventing them from comparing the value of their work. To further dampen employees’ cases, they are hampered by a lack of knowledge of the law, the resources to employ legal teams and access to company informatio­n on pay grades and job evaluation­s.

“The burden of proof on the complainan­t to provide evidence and facts for the court to make a proper assessment perpetuate­s the power imbalance between the employer and employees,” says Bosch.

What to do?

To make the law more effective, 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.”

Leana Diedericks, research fellow at Stellenbos­ch Business School, says trade unions should also ensure they have the 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 a moral and human rights issue and perception­s of discrimina­tion lead to employee disengagem­ent.

“It is in the interests of both employer and employee to strengthen mechanisms that can avert the perpetrati­on of pay discrimina­tion.”

 ?? Picture: Shuttersto­ck ?? STILL UNEQUAL. Employees are disadvanta­ged as much by the system as they are by factors such as race and gender, according to a recent report.
Picture: Shuttersto­ck STILL UNEQUAL. Employees are disadvanta­ged as much by the system as they are by factors such as race and gender, according to a recent report.

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