About 30,000 retail employees at Asda, mostly women, have moved a step forwards in their equal pay claim against their employer.
The male colleagues work in Asda’s distribution depots, but claimants don’t work in the distribution depots; they work in Asda’s retail stores, so how can they compare their pay to that of colleagues who work in a different location?
Comparators and the statutory provisions
The Equal Pay Act 2010 requires that your more highly paid comparator colleague must either work:
Given that they don’t satisfy the above, the Asda retail workers needed to rely on the second limb and show that ‘common terms’ applied at the establishments. If they did, then the claim can proceed to a full hearing. If they didn’t, the claim fails.
A preliminary hearing was held in 2016 to decide this question in relation to the Asda employees. It was decided in the claimants’ favour, but Asda appealed, lost again, and appealed again to the Court of Appeal. Judgment was handed down on 31 January 2019.
The Court of Appeal started by reviewing the relevant case law.
Application to Asda and decision
Applying this to the Asda case, the Court summarised the pertinent questions as follows:
On the facts of this case, it was held that the answer to both questions was yes. Hence there are ‘common terms’ and the claim can proceed.
The Asda retail employees issued their equal pay claim in 2014. It has taken over four years to get this far, and Asda may yet seek to appeal to the Supreme Court. Aside from this preliminary issue, the case has yet to move onto the principle issues of whether or not the retail employees’ work is of equal value to that of the distribution employees, and if it is, whether the difference in pay constitutes unlawful sex discrimination, or whether Asda has a non-discriminatory justification for the difference. If each issue is appealed to this extent, the end could be a very long way off indeed.
It is not surprising that this is a heavily contested battle: if successful, the claimants will be entitled to arrears going back many years, and the large supermarkets will face a very hefty bill. But that said, it is unsatisfactory that, on this preliminary issue at least, in relation to which we have clear Supreme Court authority and the three courts have all now reached the same conclusion, there should have been this degree of debate, delay and expense, and one wonders whether perhaps this might have been avoided had the troublesome statutory provision been more clearly drafted in the first place.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.