Further to our last article on the various mass equal pay claims being brought against large supermarkets, the Asda appeal was heard by the Court of Appeal on the 10th-12th October 2018.
The Asda appeal stems from a ruling by Employment Judge Ryan at Manchester Employment Tribunal in October 2016 that lower paid shop floor workers, who are mostly women, could compare themselves to higher paid distribution centre workers, who are predominantly men. That ruling was upheld by the Employment Appeal Tribunal (EAT) in August 2017, with Mr Justice Kerr rejecting all 10 of Asda’s grounds of appeal. Asda then appealed to the Court of Appeal, who heard the case on the 10th-12th October 2018. The case was heard by Lord Justice Underhill, Lord Justice Sales and Lord Justice Peter Jackson, with a ruling expected in early 2019.
Should the Asda appeal fail, as the ruling would relate only to the first part of the equal pay claims against Asda (i.e. whether the distribution and shop floor roles are comparable), the Claimant’s against Asda would still need to establish in their employment tribunal claims that the distribution and shop floor roles are of equal value, and beyond that if successful on the equal value issue, that there is no material factor defence (i.e that there is no genuine non-sex discriminatory reason that justifies the difference in pay).
Mass Equal Pay Claims Against The Other Supermarkets
Following Judge Ryan’s ruling at Manchester Employment Tribunal against Asda in October 2016, mass equal pay claims have been brought against other supermarkets, including the other ‘big four’ supermarkets: Tesco, Sainsburys, and Morrisons.
Estimates of the total value of all claims against the ‘big four’ supermarkets range from £8 billion – £10 billion, with two-thirds of potential Claimant’s being women, and one third men. It is estimated that their may be as many of 400,000 – 500,000 potential Claimant’s against the ‘big four’ supermarkets, with an average claim being worth in the region of £20,000.00.
A representative from Asda stated on the eve of the Asda appeal that: “This equal value case is extremely complex and without precedent in the private sector, so it is vital the issues are given the legal scrutiny they deserve. Whatever the final outcome, the implications for UK businesses, not just in retail, will be far reaching.”