Equal Pay

Asda lose Supreme Court appeal following Equal Pay claim by 30,000 retail staff

The Supreme Court has upheld a previous Court of Appeal decision that retail workers can compare pay terms for the purposes of an equal pay claim to distribution workers, due to common terms applying at the establishments.

The right of men and women to receive equal pay for equal work is contained in the Equality Act 2010. In order to bring a claim for equal pay, the claimant must identify comparators of the opposite sex that are conducting equal work to them but are being paid more for doing so.

Around 30,000 predominately female retail employees have submitted equal pay claims against ASDA, alleging they were not receiving equal pay in comparison to the pay terms afforded to predominantly male distribution employees. They argued that the roles of retail workers, and those working in distribution, are similar enough to warrant an equal pay claim.

Before it could hear their actual equal pay claim and therefore determine how much the claimants were entitled to, the employment tribunal (ET) first needed to establish if a comparison could be made between the two groups.  Both tribunals determined that the retail workers could compare their pay terms to those applying to distribution workers.

ASDA appealed to the Court of Appeal, who dismissed their appeal.  The Court (CA) assessed key matters to consider under domestic law when determining whether common terms apply at the establishments. They found that common terms do not require all terms that apply to relevant employees to be common.

ASDA appealed again to the Supreme Court, who again dismissed their appeal. Agreeing with the Court of Appeal, it was found that the conditions of shop floor workers and those in the distribution centres could be comparable even if the groups were not based at the same establishment.

It went on to outline that the original tribunal had considered the wrong question by carrying out a line-by-line comparison of the terms and conditions of employment between the two groups. What they should have done is establish a broad comparison by seeing if the terms were substantially the same. This was necessary in order for comparisons to be made that otherwise may not have been due to geographical or historical factors.

The claimants are now free to return to the employment tribunal to have their equal pay case heard. ASDA is still able to make the argument that there is a material difference between the roles which justified the disparity.  With mass equal pay claims against all four large UK supermarkets, this is a case which will have ground-breaking repercussions.

As at 15 April 2021