Equal pay for equal work is introduced in South Africa: Lessons from the UK experience

22 September 2014

On 1 August 2014, President Zuma declared the coming into effect of the Employment Equity Amendment Act. Described by the President as a “key achievement for women”, the new law will allow female employees in South Africa to demand the same pay as male employees performing work which is the same, similar or of equal value. Employers who fail to ensure female employees are paid the same as comparable males could be forced to rectify their pay arrangements and pay compensation.

The Act has been introduced to address concerns around South Africa’s gender pay gap. According to the World Economic Forum’s Global Gender Gap Report, South African women earn about 50 percent less than their male counterparts doing the same work, ranking South Africa 91 out of 134 countries in the world on the ratio of female to male income.

In the UK, the Equal Pay Act has been in force since 1970 and the right to equal pay for work of equal value has been in place since 1981. What lessons can South African employers learn from the UK experience?

Do not assume that female employees can only compare their pay to those of men in roles similar to theirs

Under the new Act, job content is not a relevant factor when assessing whether work is of equal value. Instead, employers will need to look at the responsibility demanded in the role, the skills and qualifications, the physical, mental and emotional effort required and the conditions under which the work is performed. This is similar to the UK position and it can lead to some interesting and unexpected results.

In one of the earliest cases in the UK, a cook successfully claimed that her job was of equal value to a joiner and a carpenter in a shipyard. Since then the courts have decided that working in a school canteen is of equal value to sweeping roads, caring for the old and disabled is of equal value to working in a cemetery and being a classroom assistant is of equal value to being a refuse collector. Employers must therefore come to terms with the fact that roles, which on paper look extremely different, may be considered to be of equal value when assessed against the criteria in the new Act and those performing them will therefore be legally entitled to the same pay.

Do not assume that you can rely on “market forces” to justify a difference in pay

Employers in the UK have often pointed to market forces to justify female employees receiving lower pay. They have argued that external benchmarking demonstrates that in order to attract talent for the roles traditionally performed by men, pay had to be set at the higher level. The market forces defence is also available to South African employers under the new Act.

The difficulty with this argument is that the market itself is sex-tainted in producing lower pay for women than for men in that it invariably reflects the inherent biases of society. The UK courts have been quick to dismiss the market forces defence in some sectors. Where the courts have found that pay rates for certain jobs taken mainly by women (for example catering) are depressed because of a conscious or subconscious perception that they are “women’s work”, the market forces defence has been rejected. If the South African courts adopt the same approach, the ability of employers to rely on market forces to justify female employees receiving lower pay will be severely limited.

Proactivity on pay is the best form of defence

Rather than waiting to be faced with individual complaints or class action suits, many UK businesses have taken matters into their own hands and carried out an equal pay audit of their workforce. This involves identifying the groups of employees likely to be considered as doing work of equal value, comparing their pay and investigating the cause of any pay gaps. This allows employers to take steps to close any pay gaps and thus reduce the risk of lengthy and costly court battles against their female employees and trade unions. It is also a particularly effective way of demonstrating to the workforce that the employer is committed to fairness and equality on pay issues.

Conclusion

Although the UK is some 30 years ahead of South Africa in legislating on this issue, it still has a long way to go. The average difference in pay between men and women still stands at 23% and the government continues to think of new ways to further reduce the pay gap. The new Act is therefore unlikely to solve the gender pay gap problem and it will probably be the first of many steps South Africa will need to take to achieve equal pay for its female workforce. Prudent South African employers should take action now to carefully scrutinise their pay practices in order to ensure that any disparity in pay can be clearly explained and justified with non-discriminatory reasons.

Tilly Harries | Employment Lawyer
Profile | Email | + 44 (0) 20 7212 4104

More articles by Tilly Harries

Natalie Dye | Employment Lawyer
Email | +44 (0) 20 7212 3346

More articles by Natalie Dye

Twitter
LinkedIn
Facebook
Google+

Comments

As a female student in South Africa, thinking about future job opportunities is a cause of concern. I am very pleased to have read this article to know that greater action is being taken to correct this gap.

Not only will women feel empowered, the business world will take a greater leap with the new Act being implemented. Women will work harder, feel more empowered and therefore create better outcomes than before. Hopefully this action will also lessen the amount of discrimination, sexual harassment and generalizations of women in the world place.

As an upcoming accountant, I look at the business world and I am horrified and the gap between women and men. More men are employed and expected to be accountants. Women are continuously put down as not being good enough to do work in the office and are often referred to as 'home mothers'. I can only hope that in the next few years more correction is taken in order to give women the respect needed.

What will be the next step in order to achieve the long-term goal of gender equality?

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Working...
Your comment could not be posted. Error type:
Your comment has been posted. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.

Working...

Post a comment