The largest equal pay group action in the private sector will continue, as Asda has lost its appeal in the Supreme Court. Asda’s retail workers, who are mostly female, are contending that the work they do is of equal value to the work undertaken by colleagues working at Asda depots, who are mostly men and who are paid more.
Whilst this decision confirms that Asda’s retail workers are able to compare themselves to Asda’s distribution workers, the retail workers still have a long way to go in their legal action. The case will now be referred back to the Employment Tribunal to decide if the retail and distribution roles are of equal value and whether any differences in pay are attributable to a ‘material factor’ that is not sex discriminatory. If its retail staff are ultimately successful, Asda could face claims for back pay amounting to millions.
“Although this is already a long-running case, this is still just a preliminary issue and there remains a long way to go,” says Sarah Lamont, partner in the employment team at national law firm Bevan Brittan. “Today’s Supreme Court decision is not unexpected given the course of the claims so far, but the retail workers are still at the start of a very lengthy legal process. There is a lot at stake financially for Asda, so I would expect further appeals on points of law as this case progresses.”
Sarah Lamont adds: “Our equal pay law is extremely complex and cases like this help to clarify important points of interpretation that are relevant for employers in all sectors. In this case, the Supreme Court has provided guidance for Employment Tribunals on how the so called ‘common terms requirement’ in cross-establishment cases should be applied in future. This is significant for many organisations.”
Equal pay cases are also ongoing against other retailers, including Sainsbury’s, Tesco and Next, where the mainly female shop floor and checkout staff are seeking to compare their roles for the purposes of equal pay, to distribution and warehouse workers, who are generally men and paid more.
Bevan Brittan has a national reputation for its employment practice, working with major employers across multiple sectors and industries.