Equal pay for equal work – When is the
discrimination unfair?
There has been a tick up in the number of these claims since the
introduction of arbitrariness as a ground for discrimination, under
section 6(1) and 6(4) of the Employment Equity Act, 1998 (the EEA),
in the last number of years.
What employers should know
Firstly, the legal test is narrow, and an arbitrary ground is
nothing more than a ground analogous to a listed ground under the
EEA. Section 6(1) does not prohibit differentiation, arbitrariness
or arbitrary discrimination, but rather prohibits unfair
discrimination on an arbitrary ground. The test for unfair
discrimination boils down to an impairment of human dignity or
having an adverse effect in a similar serious consequence.
