That’s Asda Pay: Supermarket equal pay goes to the Supreme Court

July 24, 2020

3 min read

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What's going on here?

The UK’s largest equal pay claim has reached the Supreme Court following an appeal by Asda. The Court of Appeal had previously ruled in female shopworkers’ favour that their role was comparable to higher-paid, predominantly-male warehouse staff.

What does this mean?

Equal pay is the legal right for men and women to be paid equally for doing the same or equivalent jobs, or jobs of equal value, where jobs might differ but require similar levels of skill (to check out our article on the gender pay gap click here). This right is enshrined in the Equality Act 2010 and applies to all employees, including those on part-time and temporary contracts.

The Asda case concerns the difference in the lower pay of the largely female staff working within Asda’s stores with that of the higher pay of the predominantly male warehouse staff. The discrepancy in pay between the two types of workers ranges between 80p and £3 an hour depending on the store. Asda claims, in response, that the job descriptions and daily roles of warehouse workers are more difficult than that of shop workers, and that Asda’s warehouses are located in areas with a higher average wage. Men and women performing the same role within each establishment are paid the same. The case has grown to include 35,000 retail workers at Asda stores.

The matter hinges on two issues. The first is whether the two roles are of equal worth in terms of skill, communication, decision-making and experience (among other factors). The second is whether, if the roles are found comparable by the courts, they should be paid equally. The second issue will be decided at a later date if the Supreme Court agrees with the lower courts’ decision in favour of the shopworkers on the first issue.

What's the big picture effect?

The Supreme Court’s definition of “equal pay” will inform the outcome of other ongoing supermarket worker cases, namely, those against Sainsbury’s, Tesco, Morrisons and the Co-op (check out our article on the case against Tesco click here). A victory for claimants in all of these cases could result in total damages of up to £8bn. 

Given that there have been almost 29,000 complaints of unequal pay before the employment tribunals every year since 2008, and the levels of possible compensation, one would imagine that equal pay claims are a cash cow for law firms. However, this is not the case for several reasons. The collection and disclosure of evidence from a range of workers and locations is a slow and expensive process, as are the hearings. For example, the Asda case has already been taken to court three times since 2017 and involved 20,000 pages of documents and several on-site visits by independent experts. Following the elimination of legal aid for most employment disputes, law firms can only attract lower-income litigants in large numbers by offering them “no fee, no win” arrangements. As a result, “blockbuster” cases that can result in large payouts tend to be handled by a single large law firm (in this case, Leigh Day).

The supermarket equal pay cases are among the first in the private sector, as in the past the confidentiality of information about job roles resulted in such claims largely being confined to public authorities. A judgment in the supermarket claimant’s favour further opens the door for cases in other sectors. A recent win was scored in an equal pay claim by presenter Samira Ahmed against the BBC for differences in pay between her and a male presenter (to see our article about this click here). The Financial Times suggests that pay disparities between call centre workers and in-branch customer service staff are fertile ground for further disputes, will this be the next sector to see a record-breaking equal pay claim?

Report written by Darinka Lipovac

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