Latest equal pay victory for Asda retail workers

Jake McManus, Solicitor

Equal Pay claims have attracted significant media coverage during the last 10 years with large-scale equal pay claims being brought against the ‘big five’ supermarkets: Asda, Sainsbury’s, Tesco, Morrisons and Co-Op.

The basis of these claims is around whether store workers and distribution centre workers at these supermarkets are carrying out work of equal value. If so, then store workers, who tend to be predominantly female, allege that they are being paid less than distribution centre workers, who tend to be predominantly male.

The claimants in these equal pay claims allege that the disparity in pay amounts to unjustified sex discrimination. Over 112,000 store workers have been involved in these types of claims, representing the largest private sector equal pay litigation in history.

The largest of these equal pay claims is Brierley and others v Asda Stores Ltd, which has been ongoing since 2014 and involves over 60,000 current and former employees. If successful, store workers at Asda will be awarded a pay rise equivalent to the pay of distribution centre workers. They will also likely receive compensation which could amount to up to six years of back pay to cover the differential in pay. Solicitors acting for the claimants believe that individual claims could be worth as much as £20,000 and, collectively, the final compensation of the claims could be as much as £1.2 billion.

Equal pay claims are highly complex and involve three stages:

1. Comparability: are store workers entitled to compare themselves to those working in the distribution centres?
2. Equal work: is the work carried out by store workers either:
   1. the same or broadly similar to the distribution centre workers;
   2. rated as equivalent via a job evaluation scheme; or
   3. work that a Tribunal considers to be of equal value? The claimants in Brierley and others v Asda Stores Ltd allege that their work is of equal value to the work carried out by distribution centre workers. Equal value considers various characteristics and demands relevant to a role, including the skills, effort and decision-making required by the job. An independent expert is then chosen by the Tribunal to compare the job roles and score them. The expert assesses how difficult each role is and determines whether they are of equal value.
3. Material factor defence: If the Tribunal concludes that the work is equal work, then it is for the employer to demonstrate factors for the difference in pay that are not explained, or tainted by, the difference in sex.

In Brierley and others v Asda Stores Ltd, the Supreme Court found in March 2021 that store workers could be compared with distribution centre roles for equal pay purposes. This meant that the case could continue to the next stage and determine whether the work carried out was equal work.

This month the Employment Tribunal published its decision in respect of this stage two – equal work – following a ten-week hearing that took place between September and November last year. During the hearing the Tribunal compared the roles of 14 female ‘lead claimants’ (i.e. one employee representing a particular job role, such as Checkout Operator or Shop Floor Assistant) working in the stores with 17 male workers at the distribution centres. The Tribunal found that 10 of the 12 women acting as lead claimants carried out work of equal value to Asda’s distribution centre workers. The roles that the Tribunal did not consider to be of equal value, and which have therefore failed, are Personal Shopper and Shop-floor Assistant for edible groceries. It has been reported that solicitors acting for the claimants are considering an appeal in respect of these two unsuccessful roles, given its decision affects 11,000 of the 60,000 claimants.

Subject to any appeal, the Asda store workers will now advance to the final stage of the legal proceedings, the ‘material factor defence’. The Tribunal will decide whether the reason for the inequality in pay can be justified, or if the pay difference was based on sex.

This latest success for Asda retail workers follows in the footsteps of Next employees in August last year. More than 3,500 current and former employees brought equal pay claims against the household British retailer in a long-running Employment Tribunal case lasting over 6 years. Next lost this case and it is estimated that the total amount payable to the claimants by Next will be in excess of £30 million. Lauren Ogden, Associate in the Kuits Employment team, discusses the Next equal pay claim in more detail here and the potential ramifications for the retail sector more widely.

The most important point to take from these cases is that employers need to be alive to whether they have any issues of equal pay and have a strategy as to what they can do to reduce that liability, given the potential costs implications as demonstrated by the Asda and Next group claims. It can be difficult to defend a claim, and attempt to change working practices when you are already subject to litigation.

It is therefore imperative that you undertake steps now to assess your workforce, and to ensure that you are not inadvertently engaging in discriminatory pay practices. Kuits specialises in such advice, so please contact Jake McManus or call us on 0161 832 3434 to enable you to take steps now to protect your business.