Retail store workers have won the first stage in the Sainsbury's equal pay case, after Sainsbury's conceded that the store workers can be compared to the company’s warehouse and distribution centre staff in terms of pay. As we highlighted in a previous article, Next made exactly the same decision in relation to the group equal pay claim against them.
Sainsbury's Equal Pay Case
In the Sainsbury's equal pay case, retail staff commenced employment tribunal proceedings in relation to equal pay in 2015. Currently, there are 3,714 Claimant’s in the group action. However, given that this represents only a small fraction of the number of retail staff working in Sainsbury's stores across the country, Sainsbury's could potentially be facing a significant claim for back pay should the group action be successful. In the Sainsbury's equal pay case, the store workers allege that they have been paid between £1.50 to £4.00 per hour less than warehouse and distribution centre workers, whom they allege perform work of equal value.
In the first stage of the Sainsbury's equal pay case, the retail staff, predominantly women, needed to establish that their roles could be compared to those of the higher paid warehouse and distribution centre workers, most of whom are men. Sainsbury's have announced that they have now formally conceded this point
Sainsbury's concession comes just a month after a similar concession by Next at the same stage on the issue of comparability.
The decisions by both Sainsbury's and Next were almost certainly influenced by the Asda Supreme Court ruling back on the 26th March 2021, in which Asda’s retail staff were able to show that their roles were comparable to those of the organisations warehouse and distribution centre workers. The Court held in that ruling, that common terms applied (known as the “threshold test”) to the retail and warehouse roles, despite the two groups working out of different sites.
The concessions also follow the outcome of the Tesco's equal pay case at the European Court of Justice on the 3rd June 2021. In that case, the Claimant's were successful in arguing that the ‘single source test’ applied to UK businesses, where the complaint relates to the period prior to the UK leaving the EU. Given this, where a ‘single source’ is able to rectify a pay disparity, then workers doing one type of role are able to compare themselves with workers performing another type of role at another of that single sources business locations
It is far more straightforward for Claimants to satisfy the single source test, compared to the threshold test.
Nevertheless, the Sainsbury's equal pay case is far from over. To succeed, the retail staff will next need to establish that the warehouse and retail roles are of equal value, and beyond that if successful on that 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).
All 4 of the big supermarkets (Sainsbury's, Tesco's, Morrisons, and Asda) are facing group equal pay claims against them.
Reaction To The Sainsbury's Concession
In making the concession in the Sainsbury's equal pay case, a company representative from Sainsbury's stated: "We will continue to robustly defend our position in this litigation because we stand by our position that roles in stores and depots are fundamentally different. At Sainsbury’s we’re proud of our long-standing commitment to gender equality and we pay our colleagues according to their role, not their gender. Men and women in our stores are paid an equal hourly rate. Men and women in our depots are also paid equally. To suggest otherwise is wrong."
