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Asda equal pay ruling “empowers” women to hold employers accountable
26/03/2021
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Asda

Retail shop and warehouse work should be treated as comparable, the UK Supreme Court has ruled, dismissing an equal pay claim appeal by supermarket giant Asda in a decision that will “empower women to hold employers accountable”.

The decision is the latest stage in a long-running claim bought by more than 40,000 shop-based, mostly female, Asda employees who are seeking equal pay comparable with the supermarket’s mostly male warehouse employees. The claim is estimated to be worth £500m in compensation to workers.

In her judgment, Lady Arden said the case was “important because otherwise an employer could avoid equal pay claims by allocating certain groups of employees to separate sites so that they can have different terms even where this is discriminatory”.

Throughout the proceedings, Asda has argued that retail shop staff cannot compare their work to their counterparts within the distribution centres, despite both groups sharing common terms and conditions of employment.

The claimants succeeded on trial of the issue before the employment tribunal in 2016, with Asda’s subsequent appeals dismissed by both the Employment Appeal Tribunal in 2017 and the Court of Appeal in 2019 prior to today’s decision.

The Supreme Court’s dismissal of Asda’s appeal does not mean the claimants’ claims for equal pay succeed. All that has been determined is that the common terms and conditions can be used as a valid comparison of workers.

The claimants will next argue that the roles are of equal value. This could potentially be followed by arguments over whether there are any factors, other than gender, as to why the roles should not be paid equally.

“This is amazing news and a massive victory for Asda’s predominantly women shop floor workforce,” said Susan Harris, the legal director of GMB, the union for Asda workers.

“Asda has wasted money on lawyers’ bills chasing a lost cause, losing appeal after appeal, while tens of thousands of retail workers remain out of pocket.”

Lauren Lougheed, a partner in the employment team at Leigh Day, added: “It’s our hope that Asda will now stop dragging its heels and pay their staff what they are worth.”

Employers will need to carefully evaluate the salaries and job specifications, reflecting this in the contracts and recognise where the workforce falls within the ‘same employment’ for equal pay purposes

However, an Asda spokesperson said the case could take several years to reach a conclusion: “We are defending these claims because the pay in our stores and distribution centres is the same for colleagues doing the same jobs regardless of their gender.

“Retail and distribution are very different sectors with their own distinct skill sets and pay rates. Asda has always paid colleagues the market rate in these sectors and we remain confident in our case.”

“This decision is very important, especially in recent times where key workers, such as supermarket retail staff, have been on the frontline maintaining all our access to essential supplies,” remarked Julie Taylor, a partner Gardner Leader.

“This work has been just as important as the work of those in the distribution centres, and this decision recognises that they should be paid equally for their hard work.”

Although the claims have yet to conclude, the eventual outcome will have implications for the supermarket sector and wider retail industry as many business structures are set up in a similar manner, advised Taylor.

“In Asda’s case, both sets of employees were subject to the same terms and conditions, which also suggested the work was closely aligned,” she said. “Each case will be determined on its own facts, so it will remain to be seen how far other such claims will progress, however, ultimately, I believe we will see a rise in equal pay cases.”

Taylor added: “The sad point highlighted by this case is that, although we would like to believe things have moved on from the introduction of the Equal Pay legislation in the 1970s, there still remains a division in pay for men and women.

“Moving forward, this case may empower employees, especially women, to hold employers, whether private or public, more accountable for pay. Employers will need to carefully evaluate the salaries and job specifications, reflecting this in the contracts and recognise where the workforce falls within the ‘same employment’ for equal pay purposes.” 

The claimants were represented by Outer Temple Chambers’ Andrew Short QC, Naomi Cunningham, and Paul Livingston, instructed by Leigh Day.

Asda was represented by Blackstone Chambers’ Lord Pannick QC and Hollie Higgins, and Old Square Chambers’ Ben Cooper QC, instructed by Gibson Dunn & Crutcher.