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The Court of Appeal has ruled that lower paid women working in Asda’s supermarkets can compare themselves to higher paid men working in Asda’s distribution centres for the purposes of bringing equal pay claims.
In a case that has been rumbling through the courts since 2014, the Court of Appeal ruled that ASDA’s predominantly female supermarket workers could compare themselves to the mainly male workers in ASDA’s distribution centres. An important factor for the Court of Appeal was that ASDA’s Executive Board were a “single source”, in that they controlled both the retail and distribution arms of the business and were responsible for pay decisions. The decision allows more than 7,000 supermarket staff to claim for equal pay. It would represent one of largest ever private sector equal pay claims and more claimants may come forward after hearing the Court of Appeal’s decision.
ASDA has appealed this ruling twice, having already unsuccessfully appealed the original decision of the Employment Tribunal. In response to this Court of Appeal decision, ASDA applied for a further appeal to the Supreme Court, but this was denied. ASDA also initially tried to stop the claims from commencing by, unsuccessfully, arguing that they should be heard in the High Court and not in the Employment Tribunal. When equal pay claims being brought against Tesco, Morrisons and Sainsbury’s are factored in, the potential value of these claims is thought to be in the region of £10 billion. In some cases, pay disparities stretching back decades are being claimed.
ASDA has openly admitted to paying less in its supermarkets than its distribution centres “because the demands of the jobs are very different”. The fact that men are women in supermarkets are paid the same, and men and women in distribution centres are also paid the same, may suggest that sex is not a factor in the pay disparity.
The supermarket staff are now at the start of a long and arduous legal process. It is important to note that they have not yet won their claims. The Court of Appeal has only resolved the preliminary issue of whether they are entitled to compare themselves to individuals in distribution centres. With a comparator now established, the supermarket workers will next need to prove that the work of the two groups is of equal value.
Equal pay is a complex area of law. If you need to discuss any of the legal issues surrounding equal pay, please contact our expert Employment team on 0161 941 4000 or by email lawyers@myerson.co.uk