Expert warns equal pay decision could ‘kick-start a flurry of similar claims’

Staff working in Asda stores can compare themselves to workers in the retailer’s depots for equal pay purposes, the Employment Appeal Tribunal (EAT) decided today.

Manchester Employment Tribunal ruled in October 2016 that roughly 7,000 current and former Asda employees, nearly all of them women, could bring an equal pay claim using their better-paid male colleagues in the distribution centres as comparators. At the time, it was thought the decision could cost the supermarket more than £100m, with claims dating back as far as 2002.

Asda had argued that different departments ran the two sectors and there were different methods of setting pay, so no comparison could be drawn. The retailer appealed the tribunal decision, but this was dismissed by the EAT.

“After yet another defeat, we hope that Asda take this opportunity to reflect on the merits of the claims, and concentrate on why they pay men more than women for jobs of equal value, rather than trying to stop the claims going ahead at all,” said Chris Benson, head of the employment and discrimination department at Leigh Day, the law firm representing the workers.

Tim Roache, general secretary of GMB, the trade union that helped bring the case, added: “GMB looks forward to Asda management sitting down and finding a sensible negotiated solution to recognising that our female members in stores should be paid and valued as equal to the men.”

The decision could have implications for the wider retail industry and it is understood that, since the October 2016 ruling, the number of Asda workers who have given Leigh Day permission to present claims on their behalf has swelled to 15,000.

“[The EAT] decision could kick-start a flurry of similar claims for retailers across the UK in relation to inconsistencies in the wages of staff behind the till and on the shop floor compared to those in distribution centres,” said Chris Cook, head of the employment department at SA Law. “Indeed, employees will be taking a closer look at their salaries and assessing how they measure up to their colleagues, regardless of where they work in a business. This shouldn’t be seen as an isolated case, and instead represents a significant step in the drive for equal pay.”

Ben Stepney, senior associate at Thomson Snell & Passmore, added that, while past equal pay cases had largely centred on local authorities, “now the focus has turned to supermarkets”.

An Asda spokesperson said: “We are disappointed with this appeal ruling, which relates to a technical preliminary issue of whether jobs in different parts of the business can be compared. The EAT have given us permission to appeal against this judgment to the Court of Appeal. We continue to strongly dispute the claims being made against us.”

The spokesperson added that male and female colleagues at the same locations doing the same jobs were paid the same, noting: “Pay rates in stores differ from pay rates in distribution centres for legitimate reasons, including the different market rates for different jobs in different sectors.”

Today’s decision, and the October 2016 tribunal decision, relate only to whether the store workers can compare themselves to the distribution workers. It is still yet to be decided whether those jobs are of equal value for equal pay law purposes.

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