Paying people differently for the same work, or for different work of equal value, is unlawful where the difference is based on race, gender or any other listed ground. This is a legal obligation under employment equity law rather than an aspiration, and the burden falls on the employer to justify any differential when it is challenged.
The phrase “of equal value” is what catches employers out.
Equal value is broader than the same job
The comparison is not limited to identical roles. Different jobs can be of equal value when assessed on the skill, responsibility, effort and working conditions they involve.
That means a role dominated by one group and a differently titled role dominated by another can be comparable, and a pay difference between them may need justifying even though the jobs are not the same.
What legitimately justifies a difference
Differences based on seniority or length of service, qualifications and ability, performance where measured consistently, demotion or a temporary arrangement, and a shortage of a particular skill can all be lawful reasons.
What matters is that the reason is genuine, applied consistently and capable of being evidenced. A justification applied to one group and not another is itself discriminatory.
What an employer should actually do
Know what you pay and why. A simple audit comparing pay across roles of similar value, with the reason for each material difference recorded, is the practical protection.
Job descriptions that accurately reflect skill, responsibility and conditions are what make any comparison defensible. Where a difference cannot be explained by a legitimate factor, it should be corrected rather than documented.
How disputes arise and where they go
An employee can refer an unfair discrimination dispute for conciliation and, if unresolved, to the Labour Court, and the employer carries the burden of showing the differential is justified.
The statutory framework and current requirements are published by the Department of Employment and Labour, which also administers employment equity reporting for designated employers.
Frequently asked questions
Does this only apply to identical jobs?
No. Different jobs can be of equal value when compared on skill, responsibility, effort and working conditions.
What can justify paying people differently?
Seniority, qualifications, measured performance, temporary arrangements and skill scarcity, provided the reason is genuine and applied consistently.
Who has to prove the difference is fair?
The employer. The burden falls on you to justify a differential once it is challenged.
What should an employer do proactively?
Audit pay across roles of similar value and record the legitimate reason for each material difference.
Where do disputes go?
To conciliation and, if unresolved, the Labour Court, with the employer carrying the burden of justification.
Further reading
Originally published in March 2018. Updated September 2026 into guidance on the equal pay for work of equal value obligation.
