Supermarket workers win next stage of battle for equal pay

Workers have won a Supreme Court ruling against the supermarket giant, Asda, in a judgment that could lead to millions of pounds worth of equal pay claims against supermarkets.

Background

The dispute began in 2016 when more than 30,000 Asda workers, two-thirds of them women, made a discrimination claim against the supermarket complaining that they were being paid less than other colleagues. The workers argued that it was unfair that distribution depot workers were paid on average between £1.50 and £3.00 an hour more than shop floor workers. The majority of depot workers were men.

Asda defended its position on the basis that the two roles could not be compared because retail and distribution were very different sectors with their own skill sets and subsequent pay rates.

Judgment

The Supreme Court ruled against Asda and supported an earlier Employment Tribunal decision which decided that the supermarket retail staff could compare their work to those in the warehouse distribution centres. This was because they both worked under ‘common terms of employment’. The Supreme Court, therefore, determined that if the shop or distribution workers worked in each other’s work base, they would be on the same or substantially the same terms. Evidencing that common terms of employment exist between two categories of work will often be relatively straightforward given that it is not intended that a line-by-line comparison be carried out or a prolonged enquiry.

What’s next?

Although the verdict is a big step in the right direction for supermarket workers, it does not mean that the claims for equal pay succeed. The second stage of the claim, which has already started, will need to determine whether the retail and distribution roles are of “equal value”. If they are, this will normally be followed by a third stage to contemplate if factors other than gender define why the roles should not be paid equally.

In June 2021, Tesco supermarket workers bringing a similar claim secured a win by having it determined that part of EU legislation which the UK has kept post-Brexit can be relied upon in making equal value claims. The particular EU law in question says that a woman can compare her role to a man’s role in a different establishment if a ‘single source’ has the power to control pay. This had previously been a grey area.

Further information

For specific advice for your business, please get in touch with our specialist Employment Law team through this website or by calling 0330 404 0778.

Our partners at Ashtons HR Consulting are also on hand to assist you.