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Equal Pay: The Court of Appeal rules Asda's store & warehouse staff can be compared

Posted on 01 February 2019

Equal Pay: The Court of Appeal rules Asda's store & warehouse staff can be compared

The Court of Appeal has ruled that the roles of Asda retail workers and distribution workers are comparable for the purposes of an equal pay claim. The ruling is the latest setback for Asda in a high profile dispute about equal pay within its workforce. They have said that they plan to appeal the finding to the Supreme Court.

Equal pay claims compare the role of the claimant with a comparable worker of the opposite sex within an employer and determines whether the roles are equal work or of equal value and the employer is unable to justify the disparity, it is unlawful not to pay them the same.

Asda pays its store staff less than its workers in the warehouse. The store workers are predominately women, while the warehouse staff are mainly men. Over 15,000 store staff are claiming that they should be paid the same as the workers in the warehouse. As the two roles in question are not the same, the store staff need to compare the two roles and demonstrate that their work is of equal value to that of the warehouse workers.

Although the case is still in its preliminary stages, the impact of this finding is potentially very significant. The ruling made it clear that the Courts are prepared to compare roles which, on the face of it, are seemingly different. The Court was swayed by the common terms and conditions which Asda applies to all of its staff, wherever they work, and the fact that the same executive board had ultimate oversight over pay for both sets of workers and had the ability to introduce parity, should it so choose.

The Court of Appeal's ruling is only the first stage in the legal proceedings. Asda has been appealing the Employment Tribunal's and Employment Appeal Tribunal's preliminary findings that the warehouse and store roles were suitable for comparison. If the Supreme Court refuses to hear Asda’s appeal or if Asda is unsuccessful in the Supreme Court, then the case will  be remitted to the Employment Tribunal to compare the roles and determine whether the two roles are in fact of equal value. If they are found to be of equal value, Asda will have to demonstrate non-discriminatory reasons that justify the pay discrepancy. If they are unable to do so, they will face paying the store staff back pay of up to six years, which is likely to cost tens of millions.

Without a doubt, large retailers will be watching the progress of this case very carefully. If the store workers are ultimately successful, it is likely to open the floodgates for similar claims from other such workers. However, large employers in other sectors who have a similar pay decision-making structure may be vulnerable to similar claims that different roles within their organisation are of equal value.

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