Pay discrimination litigation: Lessons learned

Abstract

Orientation: We investigated the reasons for success or failure of pay discrimination claims in South Africa.

Research purpose: To learn from reasons for judgements in equal pay litigation to clarify pertinent legal concepts and principles related to equal pay, towards improved pay practices.

Motivation of the study: To clarify the concepts of justifiable and unfair pay discrimination. To make recommendations preventing unnecessary breakdown of the employer-employee relationship, curtailing unproductive pay discrimination legal action.

Research approach/design and method: Content analysis was used to categorise the reasons for the success or failure of 22 pay discrimination litigation cases brought before the CCMA, Labour Courts, and the Labour Appeal Court (1999–2020). Cases were examined prior to and after amendments Section 6(4), of the Employment Equity Amendment Act 47 of 2013.

Main findings: Contrary to the expectation of more positive outcomes for employees after changes to the EEA came into effect, 21 out of 22 cases were unsuccessful. Legal reasons are detailed in the findings. Claimants were from the lower income bands. Case arguments often misguided. Union representation seems ineffectual.

Practical/managerial implications: There is a lack of understanding of the requirements to argue unfair pay discrimination before a court. Organisations should mediate in cases where employees claim unfair discrimination, to prevent the irretrievable breakdown or the employer–employee relationship resulting in litigation. Organisations should refrain form intentional or unintentional unfair discrimination.

Contribution/value-add: This study demonstrates that employees and their representatives lack knowledge of pay discrimination legislation. We provide explanation of pertinent concepts and principles when judging the merits of a pay discrimination case.