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In a world awash with vocal dissenters, quieter forms of protest on social change often go unnoticed. But sometimes the message is even more powerful when delivered subtly. Recently, thousands of female employees across Iceland went to work as usual… but only until 14:38. They left their male counterparts, disregarding normal working hours that would have seen them at their desks until 17:00. Why leave work early, and why at that specific time?

“Equality”, they answered – specifically, equal pay for equal work. Going back to their first historic protest in 1975, female workers in Iceland have a history of leaving work early to demonstrate the disparity between the work done and the pay received (relative to their male colleagues). With the gender pay gap at 30 percent, the female workers worked only 70 percent of the workday on the day of the protest. Mathematically, they effectively would have worked for free for every minute they stayed after 14:38. Leaving at that precise time demonstrated the extra work they do every day at no extra remuneration when compared with men in the same role.

Concerns relating to gender gaps in general are not unique to Iceland. In fact, Iceland is regarded as the most equal country by the World Economic Forum Global Gender Gap Index. South Africa is 15th on that list – up 3 places since 2006. However, the World Economic Forum’s data on wage equality for similar work ranks South Africa as 86th globally.

What should we be doing to address gender wage gaps?

Addressing the conscious and unconscious bias which results in female employees being paid less than male employees when performing work of equal value is not just an empowerment principle or an ethical consideration. In South Africa, it is required by law.

The Employment Equity Act (EEA) prohibits unfair discrimination on a number of grounds, including gender. In particular, the EEA provides that a difference in terms and conditions between employees of the same employer who perform the same or substantially the same work, or work of equal value constitutes unfair discrimination if based on prohibited grounds.

It goes without saying that no employer wants to face a claim for unfair discrimination. However, the extent of South Africa’s wage gap means that this is a very real risk. Under the EEA, employers are required to take steps to eliminate differences in terms and conditions of employment. This includes remuneration of employees who perform work of equal value where such differences are based on prohibited grounds, including gender.

The first step to eliminate unfair discrimination is to identify it. Employers should consider wage policies and procedures to determine whether:

  • Employees are performing the same or substantially the same work or work of equal value. In considering whether work is of equal value, an objective assessment of the work performed must be conducted, taking into account criteria such as responsibility demanded of the work, the skills, qualifications and experience required, the physical, mental and emotional effort required and the conditions in which the work is performed.
  • There is a difference in terms and conditions of employment. Terms and conditions of employment include remuneration, but may also extend to benefits, hours of work, place of work and other factors.
  • The difference constitutes unfair discrimination. If employees perform work of equal value, a difference in terms and conditions of employment will not constitute unfair discrimination if the difference is fair and rational, its application is not biased, and it is applied in a proportionate manner. The EEA lists factors justifying differentiation, including seniority or length of service, the relative qualifications of the employees concerned, the individuals’ respective performance, quantity or quality of work, shortage of a relevant skill etc.

If an employer discovers unfair discrimination in its wage policies or practices, it must take steps to eliminate unjustifiable wage discrimination in the workplace. Failure to do so may result in a claim for unfair discrimination. We should take a leaf from the book of the female workers in Iceland. Raising awareness of gender inequality is still required, notwithstanding the legislative prohibition on discrimination. Employers considering their workplace habits in this regard have a choice: mind the gap or trip over it.



Nikita Shaw is a senior associate in Baker McKenzie's Employment Practice Group in Johannesburg. Ms. Shaw represents both local and international clients in a variety of industries including manufacturing, fast moving consumable goods, services and telecommunications.