Equal Pay for work of Equal Value is now entrenched in legislation, as to are the enforcement mechanisms around this. A number of cases are being brought against employers where employees feel they are being unfairly discriminated against. One such case of critical importance is the decision in National Education Health & Allied Workers Union on behalf of Sinxo & others and Agricultural Research Council. It serves to remind employers that when formulating a defence to an equal pay claim, the defences set out in regulation 7 of the 2014 Employment Equity Regulations cannot simply be applied blindly. Instead, when considering the grounds for defence, an employer must apply their mind to the matter and determine if the defence is fair and rational.
In this particular case, the Commissioner applied the test as to whether or not the ground on which differentiation takes place has the potential to fundamentally impair the dignity of persons as human beings, or to affect them adversely in a comparably serious manner. This test has been applied in many cases as a test for whether differentiation is justifiable, and therefore must be considered by employers.
From an employer’s perspective. This is where matters become tricky and often through no fault of their own. When managing roles and salaries within any organisation, employers define what is called the organisational structure. Essentially, this means defining all roles that need to exist within an organisation in order for that organisation to deliver on its strategic objective. These roles are at first defined entirely independently of the individuals that might one day be hired to fulfil them, and rightly so. Consider an example of building a hospital. Those designing the hospital would design its physical structure to support the achievement of the hospitals goals. If the goal was to be the best Neurology centre in the world, one can naturally conclude that the designers would engineer the most sophisticated neurology centre possible. With this in mind, the business behind the hospital would then consider what staff would be required, in order to ensure that this centre operates efficiently. The hospital would not, from the outset, be designed around the Doctors that would one day be employed.
The point being is that the foundation for equality and fairness within any given organisation derives from a process that is entirely independent of individual employees. Employers, when determining if their employment practices are fair, tend to overlook the vital next step. It is insufficient to simply define an organisational structure that is fair. Employers then need to objectively determine if that structure fosters fairness and promotes the dignity of the employees within that structure. As has been seen in many cases to date, this is where the disconnect occurs. What may be defensibly fair from a structural perspective, may inadvertently result in an infringement of dignity for individual or groups of workers.
In our experience, the most robust way to avoid a transgression, like the one described above, is to follow a rigorous process.
Grade and define your organisational structure using objective, justifiable means. Our AxioJob software has been specifically designed to immediately highlight any roles that are
- Identical; and
- Similar or substantively the same
This allows you to immediately identify those roles which, independently of the individual’s filling the role, should be subject to the same employment practices.
Critically review the individuals/ groups of individuals within each role to determine if the employment practices they are subjected to, can in any way be determined to infringe on their dignity. We have often found with our clients that despite their best efforts, too much subjectivity is introduced at this point due to the fact that the team running this exercise often personally know some, if not all of the employees in question. In our experience, the only way to mitigate the subjectivity factor is to commission an independent audit of the structure and practices.
We, as Axiomatic Consultants are particularly well versed and appropriately positioned to effectively conduct such audits. Our methodology has been rigorously defined over many years and has assisted many organisations in defining areas of risk, as well as developing the necessary corrective action.
Give us a call today for an obligation free quotation. Alternatively contact Renzo Tognocchi on +27 11 305 1978 or Renzo.Tognocchi@axioconsult.com for more information.