Legal updates and opinions
News / News
Salary discrimination not automatically unfair
Unfair discrimination on the basis of an inequality in pay – between male and female staff, or staff of different ethnic or racial groups or any other arbitrary ground – is unlawful in terms of the Employment Equity Act.
But the opposite position – that there can be fair discrimination – also applies.
Even if there is a difference between pay or terms and conditions (which legally would be recognised as the employer discriminating between an employer and another, comparator employee), this discrimination may not always be unfair and a conclusion of inequality cannot automatically be drawn.
Certainly, if an employee complained of pay discrimination and was female for example, and otherwise of the same status, seniority, experience level and educational qualification as a comparator male employee, the reason for the difference may be solely the fact that she is female.
This would be unfair discrimination, due to pay inequality, where the employees being compared perform the same work. However, the Employment Equity Act recognises all (and more) of the above factors, such as status, seniority, experience level and educational qualification, as fair reasons to justify the difference. Even though there may be a difference, it is not due to the first employee’s gender, and is therefore not unfair.
An additional factor that the Labour Court has recently taken into account, in determining whether a difference between a male and female employee is fair or unfair, is the “market forces defence.”
This position takes into account that one employee (in this case a male), had more years of service and seniority and a higher Private Security Industry Regulatory Authority (PSIRA) grade (relevant for the employer in this case).
The court recognised that he could command a higher salary due to these factors, and that the employer had paid him more than another female employee in a similar position because he asked for a higher salary based on his market value. The difference was found to be not unfair. Employers must be aware that this sensitive issue must be assessed on each case, and the mere fact that a difference exists, does not mean it is unfair.
Latest News
The paradox between the right to privacy and the right to freedom of expression
Botha v Smuts and Another [2024] ZACC 22 The right to privacy, a shield against unwanted intrusions, allows individuals to [...]
How you driven through to how safe your personal information is with Uber
"Uber did not meet the requirements of the GDPR to ensure the level of protection to the data with regard [...]
Bulelwa Mabasa, Director and Head of Land Reform, spoke to 702
Bulelwa Mabasa, Director and Head of Land Reform, spoke to 702 discussing the potential new mining rush for critical [...]
Implications on Mining Communities in the ‘New Minerals’ Revolution
The advent of the of the discovery of new critical minerals in the quest to fulfil the growing demand for [...]
Sand Hawks (Pty) Lt d and Another v Labonte 5 (Pty) Ltd and Others [2024] ZASCA 122 (16 August 2024)
Tshegofatso Matlou - Candidate Attorney In this decision the Supreme Court of Appeal ("SCA") was required to determine whether the [...]
Business Rescue: A tool for the realignment of capital resources in a distressed environment
In September 2024, corporate restructuring and business rescue remains an active area of practice. The market is seeing financial distress [...]
 
											
				 
                                                                                                                                                                                                            




