A group of Asda employees have won a significant victory in their long-running equal pay case against their employer, with a ruling that moves them one step closer to a full hearing of a landmark case involving thousands of current and former staff.
The Court of Appeal has upheld an Employment Appeal Tribunal ruling that the supermarket’s shop workers, who are mostly female, can compare their role with higher paid warehouse staff, who are mostly male, in a pay discrimination case they have lodged.
The decision would allow thousands of workers to bring pay discrimination cases against the supermarket, and could allow employees of other retailers to do the same. The potential cost to the big four supermarkets has been estimated at up to £8 billion.
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The ruling also means the claimants’ jobs can be regarded as comparable for the purposes of the case, which means they could choose to band their claims together under a single submission.
One of the cases being brought against Asda involves 22 separate claims from a total of 5,497 claimants. The number of separate job roles represented in each claim varies from eight to 175. The supermarket could still appeal the decision to the Supreme Court.
Asda maintains the pay rates in its stores differ from pay rates in distribution centres because the demands of the jobs in each location are “very different”. The supermarket also argued that claimants who were performing different jobs were not basing their claims on the same set of facts and therefore could not join their claims in a single claim form.
Law firm Leigh Day, which represents around 30,000 employees – including those bringing similar cases against Sainsbury’s, Tesco and Morrisons – estimated the total value of claims brought against supermarkets as a result of the ruling could be more than £8 billion. Linda Wong, a Leigh Day lawyer working on the case, said: “Our clients are obviously delighted to have won this major victory against Asda.”
A spokesperson for Asda said: “We are obviously disappointed with the decision, which relates to a preliminary issue of whether jobs in different parts of the business can be compared.
“Asda brought this appeal because it involved complex legal issues which have never been fully tested in the private sector and we will continue to ensure this case is given the legal scrutiny it deserves. We remain confident in our case.
Beth Hale, general counsel at CM Murray, said although the ruling was “vitally important for the future of equal pay claims” and represented a major victory for the Asda employees, the equal pay claim had not yet been tested – yet alone lost – by the retailer. “[This is] by no means the end of the road,” she said.
She added: “In most cases, employees will be allowed to compare themselves with any employee of the same employer. They will then need to demonstrate that their roles are of equal value and that there is not a reason other than sex for the disparity in pay.”
Martha McKinley, solicitor at Stephensons, agreed it remained early days in what she called a “complex and long-running case”, but added: “This judgment represents a significant step forward in the equal pay debate and will be warmly welcomed by the thousands of other supermarket workers on the same journey as those at Asda.
“Women’s roles in the workplace have long been undervalued. The compelling evidence of pay disparity and the sheer volume of claimants in this case should act as a significant wake-up call for organisations across every industry.”
Responding to the judgment, Pam Loch, managing director at Loch Associates Group, advised employers to review the terms and conditions of employment of all their staff to ensure they were not at risk of a similar challenge. “In a society which is far more litigious than it was in the past, we are likely to see many more employees challenging their pay or status going forward and employers need to take steps to protect their business,” she said.