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Article 12/2026

LabourEdge

Regulations 2 to 7 of Government Gazette 52515 of 15 April 2025 (Gazette 2) deal with equal pay for work of equal value.  What is the approach to be followed in order to ensure compliance with the aforesaid Regulations?

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It is suggested that the following practical and sequential 6-step approach be followed:

1. Identify and classify all jobs that are:

  • the same (identical or interchangeable) – Regulation 4(1)
  • substantially the same (sufficiently similar to be reasonably considered to be the same) – Regulation 4(2)
  • of equal value (different jobs accorded the same value) – Regulation 4(3)

2. Map employees into the above classification based on actual earnings:

  • identify current remuneration for all employees within each job classification
  • identify remuneration ranges within such classification – Regulation 3(1)

3. Undertake an analysis of representation of race, gender and disability across the earning percentiles to:

  • determine which groups are concentrated in which bands
  • compare the demographic distribution per different pay levels – Regulation 3(2)

4. Identify trends based on race, gender and disability, so that:

  • discrimination potential may be identified
  • remedial action is to be taken if a specific group consistently earns less for work that is the same/substantially the same/of equal value

5. Identify factors justifying differentiation in terms and conditions of employment and these are:

  • seniority or length of service
  • qualification, ability, competence/potential above minimum levels
  • performance, quantity/quality of work (however, employees must be equally subject to a performance and evaluation system that is consistently applied)
  • differentiation attached to demotion
  • differentiation based on temporary employment to gain experience/training
  • shortage of a relevant skill/market value in a particular job classification
  • any other relevant factor not unfairly discriminatory ito s6(1) of the EEA – Regulation 7

6. Implement remedial action to:

  • address unjustifiable pay differences to design and implement changes to prevent future inequalities – s27 of the EEA and EEA4

Concluding remarks

  • It is clear that what is of paramount importance is to, firstly, classify all jobs, as set out above, in terms of Regulations 4(1) to 4(3) and, secondly, to map all employees into the above classification, based on actual earnings.
  • The analysis of a representation of race, gender and disability across the earning percentiles has as its objective to, firstly, identify potential discrimination on these grounds and, secondly, to address such discrimination.
  • The mere fact that there is a differentiation in terms and conditions of employment in respect of the incumbents of the aforesaid three job categories does not per se mean that such differentiation, firstly, amounts to discrimination and, secondly, found its place in remedial action – Regulation 7 sets out the factors justifying differentiation and, obviously, the presence of such factors means the absence of a remedial plan addressing such differentiation.
  • The remedial action plan has two objectives, firstly, addressing unjustifiable pay differences that currently exist and, secondly, taking action to prevent future inequalities.
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?