MULUNGUSHI UNIVERSITY

DEPARTMENT OF LAW, LABOUR AND HUMAN RESOURCE MANAGEMENT

SCHOOL OF BUSINESS STUDIES

NAME: PURITY KACHA

STUDENT NUMBER: 201800599

PROGRAM: BACHELOR OF LAWS IV

COURSE: EMPLOYMENT AND LABOUR LAW

COURSE CODE: LIR 431

LECTURER: MR.C. KASONDE

QUESTION: With support of relevant statutes and decided cases discuss how
matters of gender equity and equality are being regulated and proceed to show
issues of equal pay for equal work value have become part of workplace social
justice in law and practice in Zambia and the world of work generally.

DUE DATE: 21TH OCTOBER 2020

The aim of this assignment is to discuss how matters of gender equity and equality are being
regulated and to show how issues of equal pay for equal work of equal has become a part of
workplace social justice. This assignment will firstly define the key terms which are gender
equality, gender, equality and equity. Section 2 of the Gender Equity and equality Act No. 22 of
2015 defines these terms as follows; Gender equality means the state of being equal in terms of
enjoyment of rights, treatment, quantity or value, access to opportunities and outcomes by, and in
relation to both sexes. Gender means the roles, duties and responsibilities which are culturally or
socially ascribed to women, men, girls and boys. Equality includes the full and equal enjoyment,
by both sexes of right, opportunities, responsibilities and freedoms and where both sexes are
equally treated, in accordance with the constitution. Equity means the just and fair distribution of
benefits rewards and opportunities between both sexes.

Gender equity is center on fairness and justice regarding benefits and needs for both sexes.
Equity is used for example within the education, health and humanitarian sectors referring to the
equal distribution of resources based on the needs of different groups of people. Gender equity
includes the fact that a gender analysis of these needs is necessary, as they in many respects may
be different for women and men, boys and girls. However the concept gender equity is also used
to separate gender equality from the human rights agenda and avoid talking about women and
girls’ human rights. It has been picked up by conventional actors who emphasize the
complementarily of women and men, talk about “separate but equal” and go far in arguing for
biologically given roles and obligations for women and men in society.

When used in this way the concept gender equity has opened up for a definition that only
embraces part of the gender equality agenda. Thus it leaves the transformative and challenging
aspects of gender equality out and makes it possible to avoid the essential contestation of power
relations and unequal social, economic, and political structures.

However gender equality matters are regulated in a numerous way, for instance by ensuring there
is fair treatment for men and women according to their respective needs in relation to their
workplace. In order for this to be achieved the Ministry responsible for gender shall consult with
the Human Rights Commission and other stakeholders on how gender issues shall be controlled
and promoted to ensure social justice at work places. According to the Gender Equity and
Equality Act No. 22 of 2015 of the laws of Zambia, section 17 states that (1) A public body has a
duty and responsibility to promote gender equity and equality. (2) A public body shall; (a)
develop awareness programs on fundamental rights and freedoms in order to promote gender
equity and equality; (b) within the available resources allocated to that public body; (i) develop
action plans to address gender equity, equality, discrimination and harassment within the public
body; (ii) develop codes of practice and ethics for its officers to assist in promoting gender
equity and equality; (iii) provide assistance, advice and training to its officers on gender equity
and equality; (iv) develop appropriate internal mechanisms to deal with complaints of
discrimination and harassment; and (v) conduct information and advocacy campaigns to promote
gender equity and equality; and (c) audit laws, policies and practices with a view to eliminating
all forms of discrimination against any gender.

Further another point is to ensure the rights of both sexes are respected and to safeguard the
dignity of both sexes. For instance eliminating all forms of discriminations against both sexes for
example in section 27(1) of the Gender equity and Equality Act No.22 of 2015 of the laws
Zambia states that; There shall be no discrimination against women in economic and social life.
(2) The Minister, in consultation with the Ministers responsible for finance and commerce, shall
take appropriate measures in the social and economic fields, especially in the access to and
control of resources by women, to ensure the full development and advancement of women on an
equal basis with men. However in Zambia the laws ensure that there is restriction of
discrimination in employment, Section 108 of the Industrial Labour Relations Act CAP 269
entails that an employee’s service shall not be terminated on grounds of race, sex, marital status,
religion, political opinion or affiliation, tribal extraction or social status of the employee. If
employee who has reasonable cause to believe that they have been discriminated against, on any
of the grounds set out in above, may within thirty days of the occurrence of the discriminatory
incidence lodge a formal complaint before the Industrial and Labour Relations court. Usually a
court complaint is lodged within 30 days after the complaint has exhausted all administrative
channels. However in certain circumstances, the court may extend the 30 day period for a further
three months.

Further section 15 of the Gender and equity Act No 22 of 2015 prohibits discrimination it entails
that, a person, public body or private body shall not discriminate against any sex. The rights of
the employees are largely embodied in the laws which cover all areas of employment including
recruitment, selection and promotion, the provision of training, retirement and occupational
pensions. The employment Code Act of 2019 prohibits an employer from direct or indirect
discrimination against a current or prospective employee on grounds of colour, nationality, tribe,
or place of origin, language, race , social origin, religion, belief, conscience political or other
opinion, sex, gender, pregnancy, marital status, ethnicity, family responsibility, disability, status,
health, culture or economic grounds. The Act further prohibits direct discrimination on the above
grounds in respect of recruitment, training, promotion, terms of conditions of employment,
termination of employment or other matters arising out of the employment.

In the case of London borough of wandsworth v CRW:EAT 7 March 2016; in this case the
claimant a black woman employed by the respondent at a residential unit for disabled, vulnerable
young people had brought complaints of direct race discrimination automatic unfair dismissal
and ordinary unfair dismissal. These concerned the disciplinary process pursued by the
respondent, resulting in the claimant’s dismissal for what was said to be gross misconduct arising
from failure to safeguard vulnerable children in the claimant’s care. The claimant white
comparator had also faced disciplinary charges relating to failing in respect of vulnerable
children at the unit. In this case, the incidence were alleged to give rise to concerns as to
appropriate behavior and or risk of sexual abuse but there was a delay in investigating these
matters and concerns ultimately pursued to a disciplinary hearing were characterized by the
respondent as misconduct and the disciplinary penalty limited to a written warning rather than
dismissal. The ET’s considered the two cases to be inadequate explained and interfered that the
respondent’s actions were because of the race and thus upheld the complaint of direct race ,
contrary to section 13 Equality Act. It also found the reason or principle reason for the claimant’s
dismissal was her whilst blowing and thus unfair under section 103 a employment rights
dismissal respondents had made good the purposes of section 98(2) section conduct and unfair
dismissal was fair in all the circumstances. The court held that the inconsistencies in the ET’s
conclusions could not be reconciled and both rendered the decision unsafe. It was not the
claimant’s dismissal to be both automatically unfair for section 103(A) of the Employment
Rights Act. Although it was possible that the race Right play a part in an employer’s decision
making, whilst not being the reason or principle reason the dismissal, ET’s reasoning on the race
discrimination case was not adequate to the task. In the circumstances the appeal court would not
allow the ET’s decisions set aside in its entirety. The matter would be remitted to be considered
afresh by a differently.

Equality of opportunity and treatment in employment and occupation entails that all individuals,
both men and women, who are working or looking for work are treated according to their
capabilities and their merit. The issue of discrimination arises when equality of opportunity is
denied, and when some people are treated unfavourably because of characteristics such as ethnic
extraction, sex, religion or political opinion. So discrimination in employment violates human
dignity and social justice and has far-reaching negative consequences. It does not only have a
negative effect on the life of male and female workers and their families: it has an equally
negative impact on the workplace and the company, and on society as a whole.

However the workplace is a privileged access point for combating discrimination and for
promoting equality, which in their turn help to boost social cohesion, peace and stability. This is
why the elimination of discrimination and the promotion of equality in the world of work is a
key aspect of the ILO’s decent work agenda. The Discrimination (Employment and Occupation)
Convention, 1958 (No. 111) aims to eliminate discrimination in all aspects of employment and
occupation on the grounds of race, colour, sex, religion, political opinion, national extraction or
social origin, or any other criteria prohibited at domestic level. The Convention makes sure
action must be taken to ensure that its objectives are achieved progressively. It requires regular
evaluations of the results obtained in implementing domestic policy in favour of equality so that
existing measures and strategies can be continually scrutinized and adjusted in ensuring equality
between sexes in achieving social justice.

The Constitution of Zambia CAP 1 of the laws of Zambia entails that the rights of the workers
are enshrined within the bill of rights of the new constitution by expressly including among
others the workers right to fair treatment, equal work for equal pay among other things. The
Laws of Zambia also ensure that there are measures put in place the regulate matter of gender
equally which will bring about dignity and respect for the workers in an organization. The
constitution also provides that men and women have the right to equal treatment including the
right to equal opportunities. It goes on to day a person in employment has the right to a fair
remuneration commensurate to the productivity or size of the enterprise or business. The
Employment Code Act also requires employers to pay equal wages for work of value. This
means that the amount of wages to will be paid to both sexes should be equal without favouring a
particular gender to receive more remuneration for the same job or work carried out at the place
of work.

Equal pay for work of equal value means that; “an expatriate or Zambian professional with
matching qualifications holding similar roles be remunerated equitably“. On the other hand
Work of equal value is defined as work which is not similar and has not been rated as equivalent,
but is of equal value in terms of demands such as effort, skill and decision making. An example
can be; a woman can claim equal work with a man if she can show that her work is of equal
value to his, in terms of the demands made on her. This means that work done by a woman and
her male comparator are different, but can be regarded as being of equal value in terms of
demands they impose such as the effort involved, training or skills necessary to do the job,
conditions of work, and decision making that is part of the role.

Accordance to article 2 of ILO convention 1951 (No.100) entails that each member shall, by
means appropriate to the methods in operation for determining rates of remuneration, promotion
and ensures that application to all workers of the principle of equal remuneration for men and
women workers for work of equal value. This is done by means of national laws or regulations,
legally established or recognized machinery for wage determination, collective agreements
between employers and workers and a combination of these various means.

It was demonstrated in the case of Hayward v Camel Laird Shipbuilders Ltd (1988) IRLR 257
HL. In this case the rue construction of section 1 (2) of the Equal Pay Act 1970, a woman who
can point to a term of her contract which is less favourable than a term of a similar kind in the
contract of a male comparator is entitled to have that term improved, even though, if the whole
of both their contracts is considered, she is as favourably treated as a man.

Consequently, section 31(1) of the Gender Equity and Equality Act No. 22 of 2015 of the laws of
Zambia states that; A woman has, on an equal basis with a man, the same right to access
employment opportunities and work in all sectors of the economy, in particular the same right to
(e) equal remuneration, benefits and treatment in respect of work of equal value as well as
equality of treatment in the evaluation of the quality of work.
An illustration was seen in the case of Nawakwi v Attorney General [1990] HP 1724 HC; in this
case a single mother was required to submit forms to the passport office, signed by the father of
the children, before the passport office could endorse the children in her passport. She
successfully challenged the requirement, because no such requirement existed in the case of a
man. Nawakwi relied on the constitutional provision that guaranteed equality of every person in
Zambia, regardless of race, colour, place of origin, political opinion, creed, sex, or marital status.
The high court in this case held that a single parent family headed by a male or female
constituted a recognized family unit in Zambia society and that the failure to endorse her
children in her passport amounted to unfair discrimination on the ground of sex.

It’s very important to implementing equal pay for work of equal value. For instance the UK
Equality and Human Rights Commission puts it, that; there are sound business as well as legal
reasons for implementing equal pay. Not only that pay systems that are transparent and value the
entire workforce send positive messages about an organization’s values and ways of working. So
fair and non-discriminatory systems represent good management practice and contribute to the
efficient achievement of business objectives by encouraging maximum productivity from all
employees.

Further the core element of ILO Convention No. 100 is its insistence that the right to equal pay
for equal work should not be confined to equal pay for the same work, but should extend to work
of equal value. This is ensured by eliminating unequal pay for the same work is only the first
step in the process. In situations where there is extensive job segregation, the problem is not that
women are paid less for the same work, but that they are concentrated in undervalued feminized
work. Thus the concept of work of equal value insists that the comparison should not be limited
to the content of the work, but also that job requirements such as the level of skill, effort and
responsibility, and working conditions should be considered.

Contrarily in the case of Posts and Telecommunications Corporation Limited V Salim Jack Phiri
(1995) S.J. (S.C.) (S.C.Z. Judgment No. 7 Of 1995) in this case the respondent was dismissed by
the appellant during his probation period and was paid a 14 days' salary in lieu of notice. His
dismissal was based on certain losses that the appellant had incurred as a result of the
respondent's conduct. The respondent sued the appellant contending that he had been
discriminated against on the basis of social status and sex. The court found for the respondent
and the appellant appealed. The court held that (i) there was no discrimination justifying the
award of damages by the industrial relations court (ii) the termination by notice was contrary to
the provisions of the employment regulations, and, consequently, in view of the specific terms of
the contract of probation the respondent in this case is entitled to damages for wrongful
termination before the end of the contract.

In conclusion, matters of gender equity and equality are regulated by statutes and laws which
have been put in place to ensure social justice and equal pay for equal work of equal value, in
eliminating issues of discrimination, discrimination arises when equality of opportunity is
denied, and when some people are treated unfavourably because of characteristics such as ethnic
extraction, sex, religion or political opinion. So discrimination in employment violates human
dignity and social justice and has far-reaching negative consequences. It does not only have a
negative effect on the life of male and female workers and their families: it has an equally
negative impact on the workplace and the company, and on society as a whole.

.
BIBLIOGRAPHY

Beaudonnet x (2010) International Labour law and Domestic Law: A training manual for
judges, lawyers and legal editors. 1st Edition.

Oxford university; The right to Equal pay for work of equal value

UK Equality and Human Rights Commission Equal Pay Act 2010 code of Practice

STATUTES USED

The Constitution of Zambia (Amendment) No. 2 of 2016 of the laws of Zambia

The Employment Act Cap 268 of the Laws of Zambia

The Employment Code Act No. 3 of 2019

The equal remuneration Convention No. 100, (1972)

The Discrimination (Employment and Occupation) Convention, 1958 (No. 111)

The Gender Equity and Equality Act No. 22 of 2015

CASES USED

Hayward v Camel Laird Shipbuilders Ltd (1988) IRLR 257 HL

London borough of Wandsworth v CRW:EAT 7 March 2016

Nawakwi v Attorney General [1990] HP 1724 HC

Posts and Telecommunications Corporation Limited V Salim Jack Phiri (1995) S.J. (S.C.)
(S.C.Z. Judgment No. 7 Of 1995)