The Supreme Court have ruled that shop floor workers roles can be compared to those of warehouse staff in the Asda equal pay case (Asda Stores Ltd v Brierley and others [2021] UKSC 10)
Asda Equal pay Case: Background
The Asda equal pay case goes back to October 2016, when Employment Judge Ryan ruled at Manchester Employment Tribunal 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.
Following their EAT defeat, Asda then appealed to the Court of Appeal, who heard the case on the 10th-12th October 2018. The Court of Appeal handed down its Judgment on the 31st January 2019, and upheld the decision of the EAT that the roles were comparable, with Lord Justice Underhill ruling that: "The essential reason why in my view the Judge's conclusion was open to him – indeed I believe right – is that for both classes (i.e. retail workers and distribution workers) Asda applied common terms and conditions wherever they work."
Asda then appealed to the Supreme Court, who heard the case on the 13th-14th July 2020, with Judgment handed down in the Asda equal pay case on the 26th March 2021.
Supreme Court Ruling
In dismissing Asda's appeal, the Supreme Court unanimously upheld the earlier decision by the Court of Appeal, in that the roles are comparable. The focus of the case was on the issue of whether common terms applied (known as the "threshold test") to the retail and warehouse roles, despite the two groups working out of different sites, and the Supreme Court agreed with the Court of Appeal that Asda did apply common terms.
In the ruling, Lady Arden stated: "If in the absence of firm case management the threshold test is elevated into a major hurdle mirroring other elements of an equal pay claim, the purpose of equal pay legislation will be thwarted, and the pay disparities will not be investigated....This outcome would be contrary to the object of the equal pay legislation...[This is] important because 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.”
The Case Continues
As the Supreme Court ruling only addresses the issue of comparability, the case will now need move on to the next stage. To succeed against Asda, the Claimant’s will next need to establish in their employment tribunal claims that the distribution/warehouse 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).
Implications Of The Asda Equal Pay Case
Other supermarkets, such as Tesco's, Sainsbury's, and Morrison's, have had similar cases brought against them, and the Supreme Court ruling in the Asda equal pay case will pave the way for those to continue. Similar cases have also been brought against other retail outlets, such as Next. Indeed, it has been alleged that if all of the retailers were to ultimately lose these equal pay claims, then they could be facing a total pay out in terms of back pay of £8 billion.
Reaction
Reacting to its defeat in the Asda equal pay case, a representative stated on behalf of Asda that: "This ruling relates to one stage of a complex case that is likely to take several years to reach a conclusion. 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."
Nevertheless, the legal director for the GMB, Susan Harris, stated: "[The outcome in the Asda equal pay case is a] massive victory.....Asda has wasted money on lawyers’ bills chasing a lost cause, losing appeal after appeal, while tens of thousands of retail workers remain out of pocket. We now call on Asda to sit down with us to reach agreement on the back pay owed to our members."
