After the case was taken to the Supreme Court, it has been ruled that the work undertaken by shop-based staff is of equal value to that of distribution centre employees.
In a landmark ruling, it has been decided that retail workers who work on the shop-floor in Asda can be compared to distribution centre employees in terms of the remuneration received.
Asda v Brierley began when retail workers at Asda, mostly female employees, brought an equal pay claim against their employer, stating that their work is of equal value to distribution centre employees.
Asda refuted this comparison, arguing that since the two sets of workers were not based at the same sites, they were not eligible to be compared.
However, the Supreme Court has dismissed Asda’s various appeals and instead ruled that common terms should be applied to both sets of workers, regardless of the fact that they are located at different sites.
Lady Arden, Justice of the Supreme Court, felt the ruling of this case was important as “otherwise an employer could avoid equal pay claims by allocating certain groups of employees to separate sites so that they can have different terms even where this is discriminatory”.
However, this means that lawyers representing over 44,000 Asda workers will still have to prove that the work carried out is of equal value, despite being in two different parts of the business.
A spokesperson for the supermarket said:
We are defending these claims because the pay in our stores and distribution centres is the same for colleagues doing the same jobs regardless of their gender.
Retail and distribution are very different sectors with their own distinct skill sets and pay rates. Asda has always paid colleagues the market rate in these sectors and we remain confident in our case.
Sarah Lamont, Partner in the Employment Team at Bevan Brittan, a law firm, stated:
Although this is already a long-running case, this is still just a preliminary issue and there remains a long way to go. Today’s Supreme Court decision is not unexpected given the course of the claims so far but the retail workers are still at the start of a very lengthy legal process. There is a lot at stake financially for Asda, so I would expect further appeals on points of law as this case progresses.
Our equal pay law is extremely complex and cases like this help to clarify important points of interpretation that are relevant for employers in all sectors. In this case, the Supreme Court has provided guidance for Employment Tribunals on how the so called ‘common terms requirement’ in cross-establishment cases should be applied in future. This is significant for many organisations.
Sacha Sokhi, an employment solicitor at Irwin Mitchell, also echoed these sentiments:
Whilst this is a welcomed decision for the 44,000 Asda claimants, it is yet to be determined whether the work performed was of equal value and this will likely lead to further lengthy litigation.
However, this is an important step in the right direction for those seeking equal pay for equal work and will no doubt lead to many employees and workers challenging their right to equality in the workplace. This is not just limited to the retail sector but will also impact on such diverse areas as financial services, medical and healthcare and professional services.
Suzanne Horne, Partner and Head of the International Employment practice at Paul Hastings, argued this could have “costly implications for all employers”:
Today’s judgment from the Supreme Court will undoubtedly alarm other supermarket chains and retailers who are facing similar equal pay claims which, if successful, could be valued at up to £8 billion collectively. There has been a rise in equal pay claims across the private sector in the UK and US, which may start to spread across the EU following the Commission’s proposed pay transparency directive announced earlier this month.
While this decision does not yet mean that female supermarket workers have won their case, they are certainly a step closer, and today’s ruling will have costly implications for all employers – not just those in retail – for years to come.
Monica Sharma is an English Literature graduate from the University of Warwick. As Editor for HRreview, her particular interests in HR include issues concerning diversity, employment law and wellbeing in the workplace. Alongside this, she has written for student publications in both England and Canada. Monica has also presented her academic work concerning the relationship between legal systems, sexual harassment and racism at a university conference at the University of Western Ontario, Canada.
